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SOME REASONS 



WHY THE 



TwoPerCentClaims 



OF 



Illinois, Indiana and Ohio 



NOW PENDING BEFORE CONGRESS, 

On the construction of a Statute, 
SHOULD BE 

ALLOWED AND PAID. 



Offered by and embraced in opinions furnished to the 



Hon. Isaac Nl Morris, 






COUNSEL. 






LET THOSE WHO WOULD UNDERSTAND AND DO JUSTICE, 

READ. 






<0 



HERALD PRINTING COMPANY, QUINCY, ILL 



TWO PER CENT. CLAIMS 

OF 

ILLINOIS, INDIANA AND OHIO, 

SEEN THROUGH THE 
LIGHT OF HISTORY, LAW, EQUITY, TRUTH AND REASON. 



Reader, let me engage your attention. The subject I shall pre- 
sent is worthy of it. If you can answer the facts, the law and jus- 
tice of my cause, and desire to do so, you will be the better pre- 
pared to do it after reading this pamphlet. If you do not desire to 
answer, still you should read it, that you may be the better pre- 
pared to defend the right. My object will be to present the ques- 
tion in as small a compass as possible, and yet there is so much to 
say — the question is of such magnitude — that it will require a good 
deal of space to give an intelligent view of it, and yet this presenta- 
tion of the subject will be a mere text. 

Having been engaged for several years in prosecuting the two 
per cent, claim of Illinois before the Departments at Washington, a 
full presentation of its merit will be found in my reports to the Leg- 
islature of my State, printed in a small, bound volume of two hun- 
dred and nineteen pages, called '"Two Per Cent. Reports." The 
same reasoning applied to the claim of Illinois applies, with equal 
legal force, to the claims of Indiana and Ohio. The equities of the 
States are relatively different, but law and justice requires them all 
to be settled with on the "same principles" applied to Alabama and 
Mississippi, for the same legislation was applied to all. 

In July, 1870, I was fortunate enough to have General Logan, 
who has always been a zealous advocate of the claim of Illinois and 
watchful of her interest, introduce this matter into Congress, and 



it occupied the attention of the honorable Judiciary Committee of 
the House at the last session of the last Congress, and was referred 
to the same committee of the present Congress. A joint resolution, 
accompanied by a report declaring that existing legislation required 
the payment of these claims to the States, was submitted on the sec- 
ond of March to the House. It then requiring a suspension of the 
rules to bring the resolution up for action, a motion to that effect 
failed in receiving the required two-thirds by four votes, and only 
in consequence of a misapprehension of fact. I had before the 
committee a brief historical statement of the case and other pa- 
pers, and, as some material errors occurred in their publication, 
and as it becomes important to print more than was then printed, 
with a view to a better understanding of the subject, I have thought 
it my duty to issue this document. 



Settlement of Accounts. 



THE LEGISLATION. 



It will give a better understanding of the subject to present the 
legislation in the following order : 

[From the Alabama Enabling Act.} 

The following is the third condition of the sixth section of "An 
Act to enable the people of Alabama territory to form a constitu- 
tion and State government, and for the admission of such State into 
the Union on an equal footing with the original States, approved 
March 2d, 1819, and is the only portion of the sixth section of the 
act relating to the five per cent, on the public lands : 

" That five per cent, of the net proceeds of the lands lying within 
the said territory, and which shall be sold by Congress from and 
after the first day of September, in the year one thousand eight hun- 
dred and nineteen, after deducting all expenses incident to the 
same, shall be reserved for making public roads, canals, and im- 
proving the navigation of rivers, of which three-fifths shall be ap- 
plied to those objects within the State, under the direction of the 
Legislature thereof, and two-fifths to the making of a road or roads 
leading to the said State, under the direction of Congress." 

\_From the Misssssippi Enabling Act. ~\ 
The fifth section of an act to enable the people of the western 
part of Mississippi territory to form a constitution and State gov- 
ernment, &c, approved March 1st, 1817, is as follows: 

"That five per cent, of the net proceeds of the lands lying 
within said territory, and which shall be sold by Congress from and 
after the first day of December next, after deducting all expenses 
incident to the same, shall be reserved for making public roads and 
canals, of which three-fifths shall be applied to those objects within 
the said State, under the direction of the Legislature thereof, and 
two-fifths to the making of a road or roads leading to the said State, 
under the direction of Congress." 

It was these provisions in the Enabling Acts of Alabama and Mis- 



6 Settlement of A ccou n :: 

sissippi about which Congress was legislating when the subjoined 
statutes were passed : 

"An Act to settle certain accounts between the United States and 

the State of Alabama. 
Be it enacted by the Senate and House of Representatives of the 

■:.i States of America, in Congress assembled. Th:-: : ':.t : :-- 
missioner of the General Land Office be and he is hereby required 
to state an account between the United States and the State of 
Alabama, for the purpose of ascertaining what sum or sums of 
money are due to said State, heretofore unsettled, under the sixth 
section of the act of March second, eighteen hundred and nineteen, 
for the admission of Alabama into the Union, and that he be re- 
quired to* include in said account the several reservations under the 
various treaties with the Chickasaw, Choctaw, and Creek Indians 
within the limits of Alabama, and allow and pay to the said State 
five per centum thereon, as in case of other sales. 

Approve March 2d, 1S55 

An Act to settle certain accounts :e:~een the United States 
and the State of Mississippi, and other States. 
B . it enacted by the Senate and House of Representatives of the 

States jf America, in Congrci .:::. That the lmis- 

sioner of the General Land Office be and he is hereby required to 
in ic::nn: zen.veen :he United 5:i:es ind :h= S:i:e ::" Missis- 
sippi, for the purpose of ascertaining what sum :r sums of money 
are due to said State, heretofore unsettled; on account of the public 
lands in said State, and upon the same princimes :: iliowance and 
settlement as prescribed in the "Act to settle certain accounts be- 
ted States and the State of Alabama," approved the 
.'.:'. -. I-'. .::.':.. :.;'..:-.::. ;:: .'..•■.- i mi n:V ■:.■> . md : hi: h.e he 
required to include in said account the several reservations under 
the various treaties with the Chickasaw and Choctaw Indians within 
the limits of Mississippi, and allow and pay to the said State five 
per centum thereon, as in case of other sales, estimating the lands 
at the value of one dollar and twenty-five cents per a 

: And be it further enacted, That the said Commissioner 
shall also state an account between the Unite 

the other States upon the same principles, and shall allow and pay 
to each State such amount as shall thus be found due, estimating all 
lands and permanent reservations at one dollar and twenty-five 
per acre, 
proved 57. 

Th iginally introduced into the Senate by 

Mr. Brown, contained but the : don. The journals of the 

Senate show the following action thereon : 

rch 4th. 1857, Mr. Brown, of ppi> introduced into 



Settlement of Accounts, 7 

the Senate a bill to settle certain accounts of Mississippi with the 
United States. (See Senate Journal, 1st session 34th Congress, page 
84.) The bill was referred to the committee on Public Lands, and 
on the 29th of April the committee reported it back with an amend- 
ment. (See Senate Journal of same Congress, page 290.) It passed 
the Senate on the following 5th of May. (See Senate Journal, page 
304.) Mr. Stuart, of Michigan, was the member of the committee 
who reported it back, its passage having been unanimously recom- 
mended. Mr. Brown was the only Senator who discussed it, and 
he did so briefly. I will give all that was said and done at the time 
of its passage : 

Mr. Brown. — "The committee on Public Lands, on Thursday 
last reported back the bill introduced by me (S. B. No. 4) to settle 
certain accounts between the United States and the State of Missis- 
sippi. The principle on which it is based has already been settled 
by the action of Congress. It applies to my State, and the amend- 
ment of the committee embraces like interests in other States. I 
ask the indulgence of the Senate to take up and pass it now, so that 
it may have a fair opportunity of getting through the House of Rep- 
resentatives at the present session of Congress. If it embraced any 
new principle I should not ask to have it taken up now." 

"The motion was agreed to, and the Senate proceeded, as a com- 
mittee of the Whole, to consider the bill which proposes to direct 
the Commissioner of the General Land Office to state an account 
between the United States and the State of Mississippi, for the pur- 
pose of ascertaining what sum or sums of money are due to that 
State, heretofore unsettled, on account of public lands, and upon 
the same principles of allowance and settlement as are prescribed in 
the "Act to settle certain accounts between the United States and 
the State of Alabama," approved March 2, 1855. ^ e is t0 include 
in the account the several reservations under the various treaties 
with the Chickasaw and Choctaw Indians within the limits of Mis- 
sissippi, and allow to the State five per centum thereon, as in case 
of other sales, estimating the lands at the value of $1.25 per acre. 

The committee on Public Lands reported the following amend- 
ment : 

" And be it further enacted, That the said Commissioner shall 
also state an account between the United States and each of the 
other States, upon the same principles, and shall allow and pay to 
each State such amount as shall thus be found due, estimating all 
lands and permanent reservations at $1.25 per acre." 



8 Settlement of Accounts. 

The amendment was agreed to ; the bill was reported to the Sen- 
ate as amended, and the amendment was concurred in. The bill 
was ordered to be engrossed for a third reading, was read a third 
time and passed. 

On motion of Mr. Stuart, the title was amended so as to read, 
"A bill to settle certain accounts between the United States and 
the State of Mississippi, and other States." 

The bill was referred in the House to the Judiciary Committee, 
who directed, unanimously, that it be reported back and its passage 
recommended. A brief explanation was made of the Indian reser- 
vation feature of it by Mr. Lake, of Mississippi. The rules were sus- 
pended and the bill passed. 

It will be seen by the second section of the act that it provides 
for like payment to each of the other States. What "other 
States" were intended to be embraced in the law? Such as had not 
received or were not in the process of receiving from the United 
States the whole of the five per cent. ; in other words, the second 
section of the legislation of March 3d, 1857, relates to the following 
provisions in the Enabling Acts of Missouri, Illinois, Indiana and 
Ohio, they, at the time of such legislation, being the only States in 
which public lands were situated, then in the Union, which had not 
received, or were not in the course of receiving, the whole of the 
five per cent, arising from the net proceeds of the sales of said 
lands from the United States treasury. 

There were no States on which the second section could operate 
but Ohio, Indiana, Illinois and Missouri. Their two per cent., as now 
pretended by some, had been appropriated to and absorbed in the con- 
struction of the Cumberland road. If the section was not designed 
to apply to them, it was not intended to apply to any States, for 
there were none others on which it could operate. This fact alone 
should settle the question. Mississippi and Alabama had provisions 
inserted in the pre-emption act of 1841, relinquishing the control 
of the government over their two per cent., and directing it to be 
paid to them respectively ; except in this, that the said States were 
required to use it for purposes only, specified in said provisions, giv- 
ing them the right to superintend the expenditure. The legislation 
of 1855 and 1857 removed all restrictions from the manner of using 
the fund, re-enacted the previous legislation, directed a new account 



Settlement of Accounts. 9 

to be made out, and required there should be included in said 
account five per cent, on Indian reservations ; in other words, pro- 
vided there should be a re-accounting and the balance found due 
1 'allowed and paid." Louisiana had been given the amount of her 
entire five per cent, at once, on the admission of that State into the 
Union, and the admission of Ohio, Indiana, Illinois, Mississippi, 
Alabama and Missouri carries us to Michigan and Arkansas, the first 
States admitted after Missouri, when a new policy was inaugurated, 
as we shall see. 

\_From the Missouri Enabling Act.~\ 

"That five per cent, of the net proceeds of the sales of lands 
lying within the said territory or State, and which shall be sold by 
Congress from and after the first day of January next, after deduct- 
ing all expenses incident to the same, shall be reserved for making 
public roads and canals, of which three-fifths shall be applied to 
those objects within the State, under the direction of the Legisla- 
ture thereof, and the other two-fifths in defraying, under the direc- 
tion of Congress, the expenses to be incurred in the making of a 
road or roads, canal or canals, leading to the said State. ' ' 
\From the Illinois Enabling Act. ~\ 

The act admitting Illinois into the Union, entitled "An Act to 
enable the people of Illinois territory to form a constitution and 
State government, and for the admission of such State into the 
Union on an equal footing with the original States," approved 
April 1 8th, 181 8, says in section 6, condition third: 

"That five per cent, of the net proceeds of the lands lying within 
such State, and which shall be sold by Congress from and after the 
first day of January, one thousand eight hundred and nineteen, 
after deducting all expenses incident to the same, shall be reserved 
for the purposes following, viz : Two-fifths to be disbursed, under the 
direction of Congress, in making roads leading to the State, the 
residue to be appropriated by the Legislature of the State for the 
encouragement of learning, of which one-sixth part shall be exclu- 
sively bestowed on a college or university." 

[From the Indiana Enabling Act.~] 

"That five per cent, of the net proceeds of the lands lying within 
the said territory, and which shall be sold by Congress from and 
after the first day of December next, after deducting all expenses 
incident to the same, shall be reserved for making public roads 
and canals, of which three-fifths shall be applied to those objects 
within the said State, under the direction of the Legislature thereof, 
and two-fifths to the making of a road or roads leading to the said 
State, under the direction of Congress." 

2 



IO Settlement of Accounts. 

[From the Ohio Enabling Act, ,] 
" That one-twentieth part of the net proceeds of the lands lying 
within the said State, sold by Congress from and after the thirtieth 
day of June next, after deducting all expenses incident to the same, 
shall be applied to the laying out and making public roads, leading 
from the navigable waters emptying into the Atlantic to the Ohio, 
to the said State and through the same ; such roads to be laid out 
under the authority of Congress, with the consent of the several 
States through which the road shall pass. Provided, always , That 
the three foregoing propositions herein offered are on the conditions 
that the convention of the said State shall provide, by an ordinance 
irrevocable without the consent of the United States, that every 
and each tract of land sold by Congress, from and after the thirtieth 
day of June next, shall be and remain exempt from any tax laid by 
order or under the authority of the State, whether for State, county, 
township, or any other purpose whatever, for the term of five years 
from the day of sale." 

The proviso contained in the foregoing condition, embraced in 
the third section of the Enabling Act for Ohio; following to wit : 
"that the three foregoing propositions — (the material one is only 
quoted) — herein offered are on the conditions that the convention 
of the said State shall provide, by an ordinance, irrevocable with- 
out the consent of the United States, that every and each tract of 
land, sold by Congress from and after the thirtieth day of June 
next, shall be and remain exempt from any tax laid by order or 
under authority of the State, whether for State, county, township, 
or any other purpose whatever, for the term of five years from and 
after the day of sale," was subsequently applied to other States, in- 
cluding Indiana, Illinois and Missouri, so that an ample equivalent 
lor the grant was exacted from and rendered by each. The respect- 
ive dates of the ordinances of Ohio, Indiana, Illinois and Missouri, 
accepting, confirming and ratifying the propositions contained in 
their respective Enabling Acts, can be found by referring to their 
State archives. That for Illinois was adopted by the Constitutional 
Convention at Kaskaskia, in said State, on the 26th day of August, 
A. D. 1 81 8, and concludes as follows : 

" Therefore, this Convention, on behalf of and by authority of 
the people of the State, do accept of the foregoing propositions, 
and do further ordain and declare that every and each tract of land 
sold by the United States, from and after the first day of January, 
1 819, shall remain exempt from any tax laid by order or under any 
authority of the State, whether for State, County or 'Township, or 



Settlement of Accounts. 1 1 

any purpose whatever, for the term of five years, from and after 
the day of sale. And that the bounty lands granted, or hereinafter 
to be granted, for military services during the late war, shall, while 
they continue to be held by the patentees or their heirs, remain 
exempt, as aforesaid, from all taxes for the term of three years from 
and after the date of the patents, respectively; and that all the 
lands belonging to the citizens of the United States residing with- 
out the said State, shall never be taxed higher than lands belonging 
to persons residing therein. And this convention do further ordain 
and declare, that the foregoing ordinance shall not be revoked 
without the consent of the United States." 

Such were the propositions — such the consideration which moved 
to their acceptance and ratification and such their binding obligation 
on each of the contracting parties. Each of the States faithfully 
kept the contract on their respective parts. 



HAS EITHER OF THE OTHER STATES RECEIVED THE FIVE PER CENT. ? 

Missouri has — Illinois, Indiana and Ohio only three parts of it. 
The two parts was long withheld from Missouri, as it is being with- 
held from Illinois, Indiana and Ohio, under the pretext that Con- 
gress, properly, in pursuance of the trust it held, appropriated 
it in aid of the Cumberland road. Congress, however, took a 
different view of the subject, and appropriated the fund to Missouri 
by special act approved February 28, 1859, (see stat. at large, vol. 
11, page 388) considering it had no moral or legal right to retain it, 
and thus added another precedent to those of Alabama and Missis- 
sippi in favor of paying all the States, and excluding none in which 
such fund originated. 



MR. TAPPAN S REPORT FROM THE JUDICIARY COMMITTEE OF THE HOUSE, 
SUBMITTED 29TH OF MAY, 1858. 

In the matter of the two per cent, fund of Missouri, Mr. Tappan, 
from the Judiciary Committee of the House submitted on the 29th 
of May, 1858, a printed report. After giving the provision of the 
enabling act of that State, setting apart the five per cent., and 
which is similar to the one for Illinois, except that three parts of it 



12 Settlement of Accounts. 

were taken by Illinois for educational purposes while Missouri took 
her three parts for the purpose of improving her internal commu- 
nications, says : 

"That part of the fund which it is contemplated by this article 
shall be applied by the State to improving its internal communica- 
tions has been duly paid over by the government of the United 
States. But the two per cent, received by the United States in 
trust, to be applied to communications leading to the State have 
not been so applied. The trust has not, therefore, been duly dis- 
charged, and the money which the article recognizes as the property 
of the State, and to be applied for its benefit should be accounted 
for to the State by the government of the United States. The two 
per cent, fund in question belonged to the State, and the interest of 
the Federal government was but that of a trustee, and the sole rea- 
son for the arrangement was, that as the government of the United 
States had authority outside of the limits of the State, which the 
State did not possess, it could apply that portion of the fund in- 
tended to facilitate communication to and from the State and pro- 
mote its external commerce better than the State itself could do. 
If the terms of the article itself admitted of any question that this 
was the nature of the interest of the State in this fund, the original 
of this provision, which is found in the corresponding article of the 
7th section of the act of 30th of April, 1802, 2d. Stat. p. 175, en- 
titled "An Act to enable the people of the eastern division of the 
Territory north-west of the river Ohio, to form a Constitution and 
State government," &c, in which it is expressly admitted that the 
five per cent, was given to the State as the consideration for the 
exemption of the lands of the United States within its limits from 
taxation, would be conclusive on the point. This was certainly a 
small consideration for the release by the State of a right to tax forty 
million acres of government lands within its limits, and there is, 
therefore, the more reason why it should be certainly and fully paid 
according to the agreement between the parties, or accounted for 
to the State, if the purpose to which it was to be devoted under the 
agreement between the parties has been abandoned. That purpose 
was the construction of a road (the Cumberland road was intended) 
to the boundary of Missouri, a purpose which has long since been 
abandoned, and the government should therefore deal with Missouri 
as it has dealt with Mississippi and Alabama under similar circum- 
stances — direct the two per cent, fund, which was reserved for the 
purpose thus abandoned, to be paid to the State." 

It will be observed that Mr. Tappan placed Missouri's right to 
receive the two per cent, on the fundamental and express 
provision in the Enabling Act of Ohio, herein before quoted, grant- 
ing the five per cent, to that State on condition she would not tax 



Settlement of A c counts. 1 3 

the public lands for five years after their entry, and which was car- 
ried into the Enabling Act of Missouri as well as into those for 
other States. 

The act appropriating the two per cent, to Missouri could in no 
wise invalidate the rights acquired by Illinois, Indiana and Ohio, 
under and by virtue of the act of March 3d, 1857. The Missouri 
act, however, would never have been asked for, if her Representa- 
tives in Congress had known of the general provision contained in 
said act of March 3d, 1857, as is evidenced by the subjoined letter 
from the late Senator Green, concurred in by General Blair, which 
will be found to be of interest. 

Quincy, Illinois, November 30, 1863. 
Hon. I. N. Morris: 

Dear Sir: My attention has recently been directed to your cor- 
respondence with the officers at Washington City' for the purpose 
of procuring payment of two per cent, of the net proceeds of the 
sales of public lands in this State. And I confess I was not aware 
of the existence of the law under which you claim payment, until 
you brought it before the public. 

When in the United States Senate, I, with my colleagues in both 
Houses of Congress, procured the passage of a special law for a 
similar payment of two per cent, to Missouri ; but if we had notic- 
ed the general provision of the second section of the act of March 
3, 1857, we would have relied alone upon it, without waiting the 
tardy and uncertain action of Congress, and I should have felt con- 
fident in obtaining the two per cent, to which the State was justly 
entitled, without any further legislation. And here, I may remark, 
is illustrated the impropriety of connecting a general provision, 
with a special bill unless the title clearly indicates its character. 
This provision in the act for Mississippi, in connection with the act 
for Alabama, on the same subject, and thereby re-enacted, is ample 
and explicit, and would have been relied upon by us if it had not 
escaped our observation. But although we obtained a special law for 
the two per cent, of Missouri, we were met under it by the officers 
of the United States Treasury with the same objections and sub- 
terfuges that you have to encounter when applying for Illinois. 
However, I finally obtained a reference of the question to the At- 
torney General, who promptly decided in favor of Missouri, and 
the money was accordingly paid. I have no doubt the same thing 
would have occurred under the laws on which you rely. 

These laws direct, in substance, an account to be stated with 
Alabama and Mississippi, of the whole five per cent, of the net 
proceeds of sales of public lands, and also to include the Indian 
reservations ; and then the last section directs a similar account 



1 4 Settlement of Accounts. 

with each of the other states, and to allow and pay the same. Lan- 
guage could not be plainer. There is an account to be stated, allow- 
ed and paid, independent of the Indian reservations, and then, if any 
of these, they are to be i?icluded. This inclusive part necessarily 
implies something preceding, and it might be entirely stricken out 
of the law, and the enactment remain, both intelligible and effec- 
tive, retaining the primary object of the law — the inclusive part 
being nothing but the incident. Yet the pretext of the officers 
would make this little incident everything, and render the legisla- 
tion of Congress both absurd and nonsensical. I feel obliged to 
you for having brought this subject to light. 

Very respectfully, your obedient servant, 

JAMES S. GREEN. 

As well as my recollection serves me, I concur in the statement 
of facts, and I agree in the conclusions of the above letter of Hon. 
James S. Green. 

FRANK P. BLAIR, Jr. 

Washington City, January 20, 1864. 



NO BENEFIT RECEIVED. 

I do not propose to discuss the appropriations for the Cumber- 
land road, further than I can help, in connection with the legislation 
under consideration, having heretofore, in other papers, dem- 
onstrated that the act, entitled "An act to settle certain accounts 
between the United States, and the State of Mississippi and other 
States" removed all obstacles out of the way of the payment of the 
money. This conclusion will be found irrefragably enforced, by 
the report of the Judiciary Committee of the House made to the 
last Congress, the opinion of Judge Curtis, brief of Hon. Wm. M. 
Evarts, and considerations touching the right of the State of Illi- 
nois to the two per cent, fund, by Gen. C. Cushing, all of which 
will be reprinted in the latter part of this document, as well as in 
various other opinions, and arguments to be found in the "Two Per 
Cent. Reports," including those of President Lincoln, Hon. Thos. 
A. Hendricks, given when Commissioner of the General Land 
Office, Judge S. A. Treat, of the Southern District of Illinois, 
Judge Thomas Drummond of the Northern District of Illinois, 
Judge David Davis, of the Supreme Court of the United States, 
Judges Walker and Caton, of the Supreme Court of Illinois, Judges 



Settlement of Accounts. 15 

Higbee and Koerner, of Illinois, the members of Congress from said 
State, and various others, furnished to me and some of them 
given herein. Nor do I propose to here discuss at length the ad- 
vantages received from the Cumberland road by the States, rela- 
tively, through which it passes, or was to pass, still it is proper to 
allude to it incidentally and show that Illinois received no more 
benefit from its construction than did Missouri and that there is no 
argument which was or could be urged in favor of the payment of 
the two per cent fund to Missouri which does not apply with equal 
force to Illinois. All the work done within the bounds of the latter 
state went to waste, and the state never attempted to appropriate 
any part of what was done to any useful purpose, well knowing it 
was of no value. For proof read the following 



certificate. 
United States of America, 



1 



ss 
State of Illinois, 

I, O. M. Hatch, Secretary of State of the State of Illinois, hereby 
certify that I have carefully examined the files of my office, and 
that I am unable to find that the Legislature of this State ever passed 
any law or resolution, accepting the work done upon the National 
road, by the United States, within this State, in lieu of the two per 
cent, fund, which said State was to have expended under the direc- 
tion of Congress, in making roads leading thereto, under and by 
virtue of the sixth section of the act providing for her admission 
into the Union. I further certify that I cannot find any act or res- 
olution passed by the Legislature of said State, declaring all, or 
any part of what is or may be claimed to be a part of said National 
road, lying within the limits of said State, a State road. 

In testimony whereof I hereunto subscribe my name and affix the 
great seal of State, at the City of Springfield, this 2 2d day of Jan- 
uary, A. D. 1864. 

[l. s.] O. M. HATCH, Secretary of State. 

Indiana and Ohio were favored, if it can be called favor, with a 
greater amount of expenditure than Illinois, on the road, within 
their respective limits, but I shall show before concluding that the 
United States did not keep its contract with either of them, and 
that they have a subsisting obligation on the Government which 
cannot be, in justice, ignored or disregarded. 



1 6 Settlement of A c counts. 

The sum of the whole matter embraced, as far as the question is 
presented on the foregoing pages, is this, that Congress in view of 
all the facts, passed the act of March 3d, 1857, entitled "An act to 
settle certain accounts between the United States, the State of Mis- 
sissippi and other States," as a measure of equal justice to each 
of the "other States." Under that act, Mississippi was entitled 
to have her five percent, account on public lands, "stated, allowed 
and paid;" so are Illinois, Indiana and Ohio. Under that act 
Mississippi was entitled to five per cent, on the Indian reservations 
within her limits, and have the same when ascertained, included in 
the land account, and thus both "allowed and paid" as one account; 
so are Illinois, Indiana and Ohio. The second section of said act 
declares, that the account shall be stated on both the Public Lands, 
and Permanent Reservations (see Attorney General Bates opinion 
two per cent, reports from page 113 to 1 1 6) and when stated, that 
it shall be "allowed and paid." The law fixes the value of the 
Lands and the Reservations at $1.25 per acre as a basis for the com- 
putation. It is manifest that Congress by the general provision put 
in the act of 1857 regarded "each of the other States" as equally 
entitled to the two per cent, with Alabama and Mississippi, and 
sought thereby to avoid future special legislation and place the 
States on an equality ; for it could not but be expected that "each 
of the other States," would ask for equal justice. The law means 
"each of the other States," or it means none of them. It means 
that the accounts of "each of the other States," shall be "stated, 
allowed and paid," or it means nothing. What the present Con- 
gress is asked to do, and this is all, is to declare the true intent and 
meaning of the act of 1857, to be that it places Ohio, Indiana and 
Illinois on the same footing with Mississippi and Alabama. Is 
there any doubt about its meaning? It would seem to have received 
such an overwhelming concurrent construction, that all doubt should 
be removed. The Commissioners of the General Land Office, at 
the first, insisted that the act embraced only the per cent, on Indian 
reservations, and did not include the per cent, on Public Lands, 
but when Attorney General Bates decided that it did, and that he 
should be required to state said account, then, as a final refuge, the 
expenditures on the Cumberland road were resorted to as a set-off. 
These expenditures could not be applied by virtue of any word in 
the law, or any action of Congress, but by assumption outside of 



Settlement of Accounts. 1 7 

both, as if a subordinate government officer could duplicate legisla- 
tion. No principle is better settled than that if a set-off exists at 
the time of the passage of an act, and it is not provided for there- 
in, it cannot be applied, but is to be treated and considered as 
waived. In reality none existed in these cases, either in justice, 
right or law. One has hardly a fair chance before a judge who 
considers himself chosen in opposition to you, and after he sub- 
mits his argument in reply, sits down and decides in his own favor ! 
He will readily admit that you made an able argument, but he treats 
it as a very easy matter for him to expose its falacy. 



SUMMARY, INCLUDING VARIOUS NEW QUESTIONS OF LAW AND FACT. 

At the risk of being thought tautological for a few pages I will 
run over the legislation herein before given. 

When the earlier New States in which public lands were situated, 
as has been shown, were admitted into the Union, Congress con- 
tracted to allow them five per cent, of the net proceeds of the 
sales of said lands on condition that the states refrained from tax- 
ing them, for five years after their entry. To this proposition 
and condition the States gave their consent, and by the contract 
lost greatly more than they gained. The House Committee on 
Roads and Canals submitted a report February 18th, 1846, demon- 
strating the obligations on the part of the United States to com- 
plete the Cumberland road, [see Reports Committee's 2d Ses 29th 
Congress, 1846-7 from which the following extract is taken.] 

"The four States," (Ohio, Indiana, Illinois and Missouri,) "by 
binding themselves not to tax the public lands during a period of 
five years from the date of their sale to individuals gave a most val- 
uable consideration for the expenditures Congress is pledged to 
make. The principal source of revenue belonging to new States is 
the land tax ; and to be deprived of the ability to levy it to any 
considerable extent, is to seriously augment the embarrassments of 
the treasury and the burdens of the people. And besides this, the 
United States is, and during the last forty-five years has been, the 
principal land owner in three of the four States ; and if its land had 
been taxed at the rate that other lands have been taxed, money 
enough would have been raised to have built a road from Cumber- 
land to Nebraska. But. unlike other property owners, while its 
property is daily being benefitted by the labor, money, and im- 
provements of the States and of the citizens, it is not compelled to 
pay its pro rata share of taxation. Does not this fact constitute an 
3 



1 3 Settlement of Accounts. 

important claim upon the kindest and most liberal consideration of 
Congress?" ' 

The same Committee in the same Report in speaking of the Cum- 
berland road, say : 

"Is it to be supposed for a moment that the States ever would 
have consented for the general government to have retained and ex- 
pended this fund upon a work which she might lay out and project 
upon a scale so extensive, or so expensive, as to merge the whole 
funds, and leave a work that would exhaust in its completion a great- 
er sum than the States would have felt justified in expending on any 
single work ? For let it be remembered that the States had no say 
in the direction, sale, or execution of the work. It would have 
been folly in the States to have consented to such compacts with 
such an understanding ; but it seems to the Committee that such is 
not the true construction of the compacts. This view is strength- 
ened by the facts, that the lands subject to the operation of the 
compacts in the three States of Ohio, Indiana and Illinois, alone, 
were estimated at one hundred and twenty millions of acres ; the 
tax on this quantity of land, which was relinquished by the States, 
for the five years, would have amounted to at least five millions of 
dollars." 

Such is a part of what Ohio, Indiana, and Illinois lost in 
taxation for the five per cent. What did Virginia, Pennsyl- 
vania and Maryland pay for the respective portions of it lying 
within their respective limits ? Nothing directly, — nothing except 
their proportion of the general tax to raise the amount expended 
on the road. Here is a case where three of the States are required 
to pay at least in part, for the road, while Congress does not at- 
tempt to require of the other three, the payment directly of a cent. 
But the whole of this able and interesting report will be found re- 
printed in a subsequent part of this pamphlet. I shall have occasion 
to refer to it again and to the exhibits which accompany it. 

Mr. Tappan in his report on the application of Missouri for the 
payment of the two per cent, (see his report on a former page) 
says: 

"This was certainly a small consideration for the release by the 
State of a right to tax forty million acres of government lands with- 
in its limits, and there is, therefore, the more reason why it should 
be certainly and fully paid according to the agreement between the 
parties, or accounted for to the State, if the purpose to which it 
was to be devoted under the agreement between the parties has been 
abandoned." 

Yes it was indeed a "small consideration" allowed to Missouri 
for the agreement on her part not to tax the public lands for five 
years after their sale. The States could well afford to take one 



Settlement of A c counts. 1 9 

quarter of the loss they sustained by the agreement, in lieu of 
the per cent. 

The terms of the agreements, between the United States, and 
the States, were somewhat varied in detail, but substantially the 
same, except in this, that they show a constantly growing liberality 
on the part of Congress, in its dealings with the New States. 

Ohio was the first of the earlier States admitted into the Union. 
Her enabling act became a law April 30th, 1802. (See Brightly's 
Digest, page 707.) The 3d article of the third section provides 
that the five per cent, (act of Congress March 3, 1803 — see vol. 
2, page 225 — relinquished to the State of Ohio, three fifths of this 
fund to be expended under the direction of her legislature in 
making roads within the State for the public benefit,) shall 
be applied to laying out and making public roads, leading from the 
navigable waters emptying into the Atlantic, to the Ohio, to the 
said State and through the same, on the express condition assented 
to by the State, that she would not tax the public lands within her 
limits for five years after their entry. These conditions were not 
complied with by the United States. Congress never made any 
"public roads" to the State, ne\ r er finished any road through the 
State, never provided for the Cumberland road until long after, and 
never completed that. If the United States had any authority to 
use two parts of the five per cent, it was only in the construction of 
"public roads," — it was only on "public roads'" leading to the 
States respectively. Congress always treated the Cumberland road 
as its private property, and as such turned it over to the States, and 
they have so treated it since, as far as it was capable of being used. 
To take the money of Ohio to construct a private Turnpike in Vir- 
ginia, Pennsylvania and Maryland for those states can not be con- 
sidered as a justifiable expenditure by Congress of the trust fund, 
and yet the fact is that the two per cent, of Ohio was expended 
east of the Ohio river long before the road was half completed to it, 
whereas, let it be remembered, it is provided in the very words of 
the contract that the "roads" to be constructed with that fund were 
to run "to" and "through" that State. Even the Cumberland 
road never run "through" it, and hence in no sense did the United 
States ever keep their engagement with Ohio. They broke faith 
with her from the beginning to the end, and she took good care to 
provide in the law, passed by her Legislature, that she would only 



2 o Settlement of A c counts. 

take charge of such parts of it as were from time to time finished. 
Mr. Tappan in his report treats the provision in the Enabling 
Act of Ohio as the "original" of a similar provision in the Missouri 
Enabling Act, and so it must be regarded in reference to like pro- 
visions in the Enabling Acts of Illinois and Indiana. The State of 
Missouri having granted an equivalent for the "public roads" 
which were to be constructed with her trust fund, for her beneft, 
and having failed to receive the promised recompense, was a prom- 
inent reason assigned by the Judiciary Committee of the House in 
1858, why all the five per cent, should be paid to said State. (See 

Mr. Tappin's report.) 

That portion of the Cumberland road running through the States 

east of the Ohio river was donated to them, and they now hold the 
parts thereof lying within their respective limits as their private 
property. For the act making the donation, approved March 2d, 
1833, (see U. S. Stat. Vol. 4th page 655.) For the donotion to 
Pennsylvania and Maryland (see act approved March 3d, 1835, 
Stat, at large same vol. page 872.) Neither of these States had con- 
tributed towards the construction of the road, directly, as stated, 
notwithstanding they enjoy its advantages. 

The State of Ohio passed an act just referred to on the 4th day 
of February A. D. 1831, which was subsequently assented to by 
Congress, proposing to accept that part of the Cumberland road 
within her limits, on the conditions therein named. The first sec- 
tion of said act is as follows . 

"That whenever the consent of the Congress of the United 
States to this act shall be obtained, the Governor of this State shall 
be, and he is hereby, authorized to take under his care on behalf 
of this State, so much of the road commonly called the National 
road, within the limits of this State, as shall then be finished, and 
also, such other sections or parts thereof as may thereafter be pro- 
gressively finished within the limits aforesaid, whenever the same 
shall be completed ; and he shall be, and is hereby authorized to 
cause gates and toll-houses to be erected on said road, at such fin- 
ished parts thereof as he shall think proper, for the purpose of col- 
lecting tolls, as provided by the fourth section of this act : 

"Provided, The number of gates aforesaid shall not exceed one 
on any space or distance of twenty miles." 

If it should be insisted that Congress made different and harsher 
terms with Ohio than were made with Maryland, Pennsylvania and 
Virginia in not making the grant to that State a voluntary one, as 



Settlement of A c counts. 2 1 

must be insisted if the money is not paid to her without refer- 
ence to expenditures on the road ; still Ohio, in the section just 
quoted, took care to protect herself, at least in part, by providing 
that if she parted with her money she would have the road. It 
will be observed, that it is provided in said section, that the Gover- 
nor, of said State, should accept only so much of the National road 
within the limits of the State, as should then be finished, and also 
such other sections or parts thereof, as might thereafter be progress- 
ively finished, the Legislature of the State thus declaring, Congress 
assenting thereto, the understanding to be that the road was to be 
' -finished" entirely "through" the State. It will appear in the se- 
quel that was not done, that is, the road was not finished. While 
Ohio complied faithfully with all her obligations to the United 
States, among others refraining from taxing the public lands for five 
years after their entry, the United States did not observe in good 
faith its obligations to her. 

A short act was approved August 11, 1848, (see U. S. Stat, at 
large, vol. 9, page 293) granting so much of the Cumberland road 
as lies within the limits of Indiana, to that State, it not appearing 
from said act, that the State had ever requested the same to be 
passed, and there is certainly nothing in it which makes the grant 
anything but a free one. 

On the 9th of May 1856, (Stat, at large, vol. 11, page 7) a sim- 
ilar act was passed in regard to Illinois. This State, it is certan, 
never asked for the legislation, and has treated it as of no earthly 
consequence to her. She declines the honor of administering on a 
forsaken and wholly useless and dilapidated enterprise. In- 
diana has never relinquished her right to the two per cent, fund, 
any more than has Illinois or Ohio. 

I hold it to be indisputably true that the United States obligated 
itself to complete the National road from Cumberland in the State 
of Maryland to Jefferson City in the State of Missouri, especially if 
it claims any part of the two per cent. fund. 

Let me again ask the attention of the reader, on this point, to the 
Report of the Committee, on Roads, and Canals, (Rep. No. 51, of 
Reports of Committees, 2d Ses. 29th Con. 1846-47.) As appropri- 
ations were not then or thereafter made for the completion of the 
road, through Ohio, Indiana, and Illinois, to Jefferson City, Mis-' 
souri, the fact doubtless stimulated Congress in 1857, to pass the 



2 2 Settlement of A c counts. 

act to settle certain accounts between the United States, the State 
of Mississippi, and other states, and in 1859, to the passage of the 
act to pay Missouri. It would seem to be monstrous to give the 
five per cent, to all the States except Ohio, Indiana and Illinois and 
deny it to them. 



CONCLUSIONS DRAWN FROM THE SECOND SECTION. 

The following are the conclusions which must be inevitably drawn 
from the second section of the act of March 3d, 1857, considered 
in connection with the provisions in the Enabling Acts of the "oth- 
er States" setting apart to them the five per cent. 

First, That the same rights which were conferred by the first 
section on Mississippi were conferred on the "other States" by the 
second section. 

Second, That Mississippi was, first, to have her account stated un- 
der the fifth section of her Enabling Act on the public lands with- 
in her limits and then the account on her permanent reservations 
stated, and included in the first account, and what was found due 
or unpaid "allowed and paid." 

Third, That the Commissioner of the General Land Office was 
commanded (for the words of the law is he SHALL do it) to make 
up just such an account for "each of the other States" a/ Missis- 
sippi was entitled to have made up, and "allow and pay" the same. 

Fourth, That said account should embrace the per cent, on "ALL 
LANDS" and on all "permanent reservations," for the law so ex- 
pressly declares, and when ascertained should "allow and pay" it. 

Fifth, That the term "all lands" in the second section means 
ALL PUBLIC LANDS SOLD and the term "permanent reserva- 
tions" embraces all Indian reservations, for it was the five per cent, 
on the public lands sold which was to be accounted for by the Gen- 
eral Government to the States, by express contract, and none oth- 
ers could have been referred to except the permanent reservations 
included in the law, which were made cumulative by the act. 

Sixth, That one dollar and twenty-five cents per acre is fixed in 
the law as the price of "all lands" and all "reservations," to be 
used as a basis for computing the amount to be "allowed and paid" 
to Mississippi and "also" to "each of the other States." 

Seventh, That the words "allow and pay" mean just what they 
import "allow and pay," for how could an account be "allowed 



Settlement of Accounts. 23 

and paid" without that was done. No Government officer has 
ventured upon an explanation of this section, but each one who 
has looked into the matter has carefully avoided its discussion. 

Eighth, That the second section of the act was inserted in the 
bill with express reference to the five per cent, provision in the En- 
abling Act of "each of the other States; the deduction following 
that "each" of said States is entitled to have its account "allowed 
and paid," not in part, but: all of it; for, by the law, the said per 
cent, was to be accounted for by the Government of the United 
States to "each of said States," the law being mandatory to the 
Land Commissioner to state their respective accounts on the "same 
principles' ' he was directed to state the account of Mississippi and 
"allow and pay" the same. To draw any other inference from the 
law would render it meaningless, discriminate against Illinois, Indi- 
ana and Ohio, and declare the Congress which passed it either igno- 
rant of language or that its purpose was to trifle with the States — a 
thing hardly to be presumed. 

Ninth, That it is not possible to believe that Congress would 
have passed the legislation it did providing for stating an account 
with "each of the other States" and requiring it to be done, if the ac- 
counts of the States would prove said States indebted to the United 
States ; especially in view of the fact that they declare that when 
said accounts are so stated, the balance found due the States shall 
be "allowed and paid" to them y Congress treating the Government 
as the payor and the States as the payees — thus making clear the rea- 
son of and incentive to the passage of the law; . the first to do jus- 
tice to the other States provided for in it, and the last to remove any 
doubts which might arise about the payment of the money — not to 
have charged against them expenditures on the Cumberland road, 
made from twenty to fifty years previous and which, if charged against 
Missouri, Illinois, Indiana and Ohio, would bring each State out 
in debt to the United States, in widely different amounts it is true, 
instead of "allowing and paying" them, — thus showing the ab- 
surdity of such a law and assuming that the Representa- 
tives from them asked for its passage to their and their States 
own injury, and of Congress attempting to collect money from 
them instead of providing for paying what was due to the States, 
just the thing they were doing. 

I have only stated the conclusions to be drawn from — not argued 



24 Settlement of Accounts. 

the law — and if I have stated them correctly, which I think every 
fair minded and intelligent man, especially every Lawyer, will con- 
cede, let Congress so declare the law to be and thus remove every 
objection to its proper and just execution, as they can have no 
other effect than to defer the right, for that will eventually prevail. 
To do justice is the brightest attribute, or should be, of a great 
Government. 

I will restate the second section here that it may be considered 
in immediate connection with the conclusions I have drawn from it 
so that I may be the more easily detected if in error. The claims 
of the States court investigation and should be exempt from studied 
evasion and inconsiderate opposition. 

Sec. 2. And be it further enacted, That the said Commissioner 
shall also state an account between the United States and each of 
the other States upon tne same principles, and shall allow and pay 
to each State such amount as shall thus be found due, estimating all 
lands and permanent reservations at one dollar and twenty-five 
cents per acre. 

Approved March 3d, 1857. 

Let us now see whether the general Government complied with 
its undertaking to build the road throughout the several States, or 
either of them, lying west of the Ohio river, and how their re- 
spective accounts stand. I shall draw for the valuable information 
I shall here give on papers or exhibits, furnished by Colonel and 
Chief Engineer Jos. G. Totten which accompany the report of the 
Committee on Roads and Canals herein before twice referred to. 



LENGTH OF ROAD. 

"The whole length of the road to be constructed was, as follows : 

From Cumberland to the Mississippi, 650 miles. 

" St. Louis to Jefferson City, 125 " 

Total > 775 

Of the above number of miles, the distance from Cumberland to 
the Ohio River is, as follows: 

Through Maryland,.. 32 miles. 

" Pennsylvania, 84.3 " 

" Virginia, !6 « 



Total, 



I 3 2 3 



Settlement of Accounts. 25 

EXPENDITURES. 

The whole sum appropriated for the road east of the Ohio/or 
expended in the States of Maryland, Pennsylvania and Virginia 

amounts to • $2,812,034.21. 

The total expenditure in Ohio, 2,077,631.06. 

" " " " Indiana, 1,128,289.50. 

" " " " Illinois, 742,445.30. 

Total, $6,760,400.07. 

Of the $2,8 1 2,034. 21 expended in Maryland, Pennsylvania and 
Virginia, there was expended on the road, in the respective States, 
the following sums : 

Expended in Maryland, $680, 1 59. 1 1 . 

" " Pennsylvania, 1,791,795.5. 

" " Virginia, 340,079.60. 

Total, $2,812,034.21." 

So it is shown that of the total sum, $6,760,400,07, expended on 
the road, $2,812,034.21 was expended in the three States east of the 
Ohio river, on 132.3 miles, while there was only $1,146,331.65 
more than that sum expended on the road west of the Ohio river, 
on 517.7 miles, confining the expenditures to the limits of Ohio, In- 
diana and Illinois, and stopping them at the Mississippi, instead of 
including 125 miles from St. Louis to Jefferson City making the av- 
erage expenditure per mile (omitting the fractions of miles) on the 
road, in 

Maryland, Pennsylvania and Virginia ....$21,303. 

Ohio, Indiana and Illinois $7,637 : 

That is to say there was appropriated to, and expended on every 
average mile of road in Maryland, Pennsylvania and Virginia $21,- 
303, while there was but an average of $7,637 spent on the road in 
Ohio, Indiana and Illinois, showing the average to be in favor of 
the three first States. Now, after discriminating to such an extent 
against them, it would be pretty hard usage to charge up against 
Ohio, Indiana and Illinois the expenditures on the Cumberland 
road. What have these three earlier-born children of the Republic 
done that they should be despoiled of the sum nominated in the 
bond ? Why should Illinois have no road and be deprived of her 
money, for w*hich she paid dearly, and Pennsylvania have a road 
which cost $1,791,795.50? under the same system, for nothing? 

4 



26 Settlement of Accounts. 

Estimate by Col. Totten of the cost of Completing the Cumber- 
land road in Ohio, Indiana, Illinois and Missouri : 

For completing the road in Ohio, $638,166.26. 

" " " " " Indiana, , 3,144,250.21. 

" " " " Illinois, 2,448,838.52. 

" " " " Missouri, 1,664,790.45. 



c< 



Total cost of completing in the four States, $7,896,045.44. 

It is seen from the gross amount expended on the road and 
the amount estimated to complete it, that it was not half done 
when its construction was abandoned ; it being understood that that 
portion of it lying east of the Ohio river was completed, or nearly 
so, the effect of the delinquency fell entirely on the States west of 

the Ohio. 

It is certainly new law that the trustee can involve the funds of 
the cestui que trust, with his own, in a joint enterprise, and, after 
he has expended them, finding the scheme will prove a failure, 
abandon it, and charge the loss up to the cestui que trust. 

Would the courts tolerate such a proceeding on the part of an 

individual? 

The same law applies alike to a Government and to an individual ; 
but it can not be enforced against the former. 

Governments are supposed to be moved by an elevation of moral 
principle to do right. 



WAS THE ROAD FINISHED ! 

Col Totten estimates it will cost to complete it in 

Ohio, $632, 1 66. 26. 

Indiana, $3,144,250.21. 

Illinois, $2,448,838.52. 

Estimates generally fall one half below the actual cost. It proved 
eminently so in the Cumberland road enterprise. 

Mr. Gallatin estimated the first 70 miles at only $6,000 per mile ! 

But take as correct the estimates of Col. Totten, and still there is 
a large excess due Ohio on the construction of the road, over 
her two per cent, fund, and the difference between the amount of 
the fund and the sums required to complete the road in Indiana 
and Illinois, is so great it is not necessary to state it. Certainly it 
would be economy to give the fund to the States rather than com- 
plete the road. 



Settlement of A c counts. 2 7 

» 

They are entitled, if not to both, to one or the other. 

So far as the road is concerned, let Ohio, Indiana and Illinois be 
placed on an equality with Virginia, Pennsylvania and Maryland. 
If finished or not they should be paid the two per cent. 



BUT WHAT HAS ALL THIS TO DO WITH THE CONSTRUCTION OF A STAT- 
UTE, THE QUESTION BEFORE CONGRESS ? 

Nothing, absolutely nothing. It has been introduced only to 
show the absurdity and injustice of such extraneous matter being 
resorted to and used to defeat the ends of justice. 

Let us return to a more legitimate mode of thought. 



THE COURSE OF LEGISLATION ON THE FIVE PER CENT. FUND 
STILL PURSUED. 

The Enabling Act for Louisiana, of the 20th Februrary 181 1, 
(vol. 2, p. 643, sec. 5, Stats, at Large,) gave to Louisiana five per 
cent, of the net proceeds arising from the sales of public lands 
within said State, to be expended under the direction of said State 
in making public roads and levees therein ; the State being pre- 
cluded from taxing the public lands therein for five years after their 
entry, as a condition of said grant. (See preceding section.) 

The Enabling Act for Indiana became a law April 19, 181 6. 
The third condition of the third section of that act sets apart five 
per cent, of the net proceeds of the land lying within said State to 
said State for the purpose of making roads and canals therein, of 
which three-fifths was to be applied to those objects, and two-fifths 
to the making of a road or roads leading to said State, under the 
direction of Congress. Condition fifth of said section provides 
that the State shall not tax the public lands for five years after their 
entry. (See Brightly' s Digest, vol. 1, p. 416.) April 11, 1818, an 
act was passed to pay to the State of Indiana three parts of the five 
per cent. (See 3d Stats., p. 424.) 

It will be observed that Congress reserved the right in the first 
instance to direct the expenditure of the whole five per cent, in 
Ohio and Indiana, and there is no reason why they should have 
been paid three parts, which does not apply with equal force to all, 
for Congress originally reserved the right to direct the expendi- 
ture of all. 



28 Settlement of Accounts. 

A law was passed March i, 1817, to enable the people of the 
Mississippi Territory to form a State government on the terms and 
conditions prescribed in said law, one of which was that the State, 
when formed, should not tax the public lands for five years after 
their entry. As a compensation for this, five per cent, of the pro- 
ceeds of the sales of those lands was set apart to said State, for 
making public roads and canals, of which three-fifths was to be ap- 
plied to those objects, within the State, under the direction of the 
legislature thereof, and two fifths to the making of a road or roads 
leading to said State, under the direction of Congress. Other con- 
ditions in regard to the use of the fund were imposed. (See 
Brightly's Digest, p. 639, sec. 3, 4, vol. 1.) 

In the case of Mississippi there was a liberal departure from the 
policy before that time pursued by Congress in placing the expen- 
diture of three parts of the five per cent, under the control of her 
legislature. 

The Enabling Act for Illinois went into effect April 18, 1818, 
and she, too, on coming into the Union agreed to refrain 
from taxing the public lands for five years after their entry, 
and was to receive three parts of the five per cent, of the proceeds 
arising from the sales of those lands, to be expended for educational 
purposes, under the direction of her legislature, except that one- 
sixth part should be exclusively bestowed upon a college or univer- 
sity, and the remaining two parts were to be expended under the 
direction of Congress in making roads leading to the said State. 
(See Brightly's Digest, p. 310, conditions 3 and 4 of sec. 3, vol. 1.) 

March 2, 181 9, Congress passed an act to enable the people of 
Alabama Territory to form a State government, under the provis- 
ions and conditions of which that State came into the Union. 
She was not allowed to tax the public lands for five years after their 
entry, and was to receive five per cent, of their net proceeds, three 
parts of which was placed under the direction of her legislature for 
making public roads, canals, and improving the navigation of riv- 
ers, and two parts were to be expended under the direction of Con- 
gress in making roads leading to said State. (See Brightly's Di- 
gest, p. 28 and 29, conditions 3 and 4, section 3, vol. 3.) 

Mississippi and Alabama obtained legislation relinquishing to 
them the right which Congress had previously exercised of direct- 
ing the manner of expending the two per cent, fund, or rather of 



Settlement of Accounts. 29 

superintending its expenditure, but still retained in itself the right 
to determine on what objects it should be expended. (Stats, at 
Large, vol. 5, p. 453-) 

In 1855 and 1857 Mississippi and Alabama introduced into Con- 
gress the legislation under consideration, not only to have their 
five per ceut. accounts re-stated, (and who denies to Congress the 
right to re-enact a law if it thinks proper, which, however, was 
done in this case with material changes,) but all conditions remov- 
ed as to the manner of expending the fund. The acts simply re- 
quire the amounts found due to said States to be paid to them with- 
out providing how they shall use it ; and as the act of 1857 places 
the other states on the same footing with Mississippi, and requires 
them to be settled with upon the "same principles," their right to 
dispose of the five per cent, as their respective legislatures might 
determine was fully recognized ; and thus Congress closed up the 
whole business. 

March 6, 1820, Congress authorized Missouri to form a State 
government, and set apart to that State five per cent, of the pro- 
ceeds of the public lands to make public roads and canals, three 
parts of which were to be applied under the direction of the legis- 
lature of said State to those objects within her limits, and two parts 
to making roads leading to said State. The State was prohibited 
from taxing the public lands for five -years after they were sold. 
(See Brightly's Digest, vol- 1, p. 646, conditions 3 and 5, sec. 3.) 

The provisions prohibiting the State from imposing a tax upon 
the public lands for five years after their entry greatly facilitated 
their sale at a time when the government greatly needed the money. 

Thus it will be seen that Congress constantly grew more and 
more liberal in its policy toward the New States. 

The five per cent, fund was the property of the States, and Con- 
gress but the trustee to direct the expenditure of all or two parts of 
it, as the case might be. This trust Congress never attempted to 
comply with in any instance unless its futile legislation to lay out 
and construct a road through Ohio, Indiana, Illinois and Missouri 
can be so considered and there can be no pretence that this road 
was ever completed in either of said States. 

In regard to all other States than these four Congress had relin- 
quished to them, previous to the passage of the act of March 3, 
1857, (see the public laws referred to herein,) every part and 



3 o Settlement of A ccou n ts . 

portion of the five percent., so that the legislation referred to could 
only apply to the States of Ohio, Indiana, Illinois and Missouri as 
before stated. 

In 1836 Congress again took a wide departure in respect to the 
five per cent, fund, having become weary of the care of any part 
of it. In that year Michigan and Arkansas were admitted into the 
Union. Congress refused to act as their trustee to direct the ex- 
penditure of the five per cent, fund or any part thereof. 

Congress did more ; it not only refused to act as trustee of any 
part of the fund, but directed it all to be paid over to said States as 
it accummulated in the Treasury, and moreover did not place said 
States under any obligation to refrain from taxing the public lands 
for five years after their sale as a conditiou of said grant, but gave 
them both the five per cent, and the right of taxing the public lands 
as soon as sold or entered, which right they enjoyed and exercised. 
The provision in regard to Michigan is as follows : (see condition 
5, sec. 3, p. 615, Brightly's Digest vol. 1,) "that five per cent of 
the proceeds of the public lands lying within said State, which have 
been, or shall be sold by Congress from and after the 1st day of 
July, 1836, after deducting all expenses incident to the same, shall 
be appropriated for making public roads and canals within the said 
State, as the legislature shall direct." The provision in regard to 
Arkansas is the same. (See Brightly's Digest, vol. 1, p. 46, sec. 4, 
condition 3.) 

Iowa and Florida were admitted into the Union March 3, 1845, 
by the same act, and the foregoing legislation in regard to the five 
per cent, which was applied to Michigan and Arkansas, was made 
applicable to them. (See Brightly's Digest, vol. 1, p. 443, sec. 5, 
condition 5.) So in regard to Oregon, admitted into the Union in 
1859. (See Brightly's Digest, vol. 2, p. 349, 350, sec. 3 of the 
act for admission.) So with Kansas, admitted into the Union in 
1861. (See Brightly's Digest, vol. 2, p. 279.) And so with all 
the new States in which public lands were located after 1836, with- 
out referring particularly to the legislation in regard thereto, having 
referred already to a sufficient number of States, to settle the point 
beyond controversy. It can, therefore, be asserted with entire con- 
fidence that all the new States in which public lands were situated, 
except Ohio, Indiana, and Illinois has received, or is in the course 



Settlement of Accounts. 31 

of receiving, the entire five per cent, of the proceeds ol the sales of 
said lands. 

In 1855 Alabama asked for and obtained the passage of an act 
by Congress commanding the Land Commissioner to re-state her five 
per cent, account, thus re-enacting and enlarging the legislation in 
regard thereto, except that it directed the Commissioner to include 
in said five per cent, account five per cent, on Indian reservations 
in that State, and then the payment to her of the balance found 
due, both on the landed account and the reservation account, which 
was an item to be included therein. 

In 1857 Mississippi asked for the passage of a similar act, some- 
what broader in its terms than the Alabama act, and in which 
$1.25 per acre is fixed on the public lands and on the Indian reser- 
vations as a basis for computation, directing and requiring the Com- 
missioner of the General Land Office to state an account with each 
of the other States on the "same principles," i. e., to re-state their 
five per cent, accounts on the public lands and allow and pay them 
what had not been previously paid, and also to state an account of 
five per cent, on the permanent reservations in said States, and in- 
clude the amount in the landed account of each of said States, and 
allow and pay the same. 

The principle was conceded that all the States in which public 
lands were situated were entitled to receive the whole five per cent, 
and that the principle involved in the bill was not a new one, and 
that, therefore, it was not necessary to be legislating for the States 
separately from time to time on the subject. Hence the general 
provision directing the five per cent, to be allowed and paid to 
each State was added to the Mississippi bill. 



THE LEGISLATION STATED BRIEFLY STANDS THUS. 

Congress retained, in the first instance, control of all the five 
per cent, granted to Ohio and Indiana but subsequently yielded to 
said States three-fifths of it. 

Louisiana, when admitted into the Union, was granted, directly, 
all of it. 

Mississippi, Alabama and Missouri directly three-fifths of it ; sub- 
sequently all of it. 



3 2 Settlement of A c counts. 

Arkansas and Michigan directly all of it, and so with all the 
States admitted after 1836. 

All the States admitted previous to 1836 were prohibited from 
taxing the public lands for five years after their sale — the two admit- 
ted in that year, Arkansas and Michigan, and all subsequently ad- 
mitted, were allowed to tax them as soon as sold. 

So that no uniform system of justice, in these regards, was estab- 
lished by Congress, until the passage of the act of 1857 which 
grants the five per cent, to "each of the other states." If no oth- 
er reason could be assigned why Illinois, Indiana and Ohio should 
have it, the fact that it was given to Louisiana, Mississippi, Ala- 
bama and Missouri should be sufficient as to them, and as to the 
balance that they were not prohibited from taxing the public lands 
as soon as sold, besides receiving the per cent. 



THE RESOLUTION BEFORE THE JUDICIARY COMMITTEE. 

The resolution before the Judiciary Committee declares that it is 
the true intent and meaning of the legislation of 1857, that the 
States of Ohio, Indiana, and Illinois shall be put on the same foot- 
ing in respect to the five per cent, with the States to which it has 
been allowed and paid. That the existing legislation requires its 
payment the legislature of Illinois has four times solemnly resolved, 
and in support of her construction of the act of 1857, the Com- 
mittee were respectfully referred to opinions and arguments herein be- 
fore cited. All these opinions and arguments combined present, 
perhaps, more legal ability than was ever before presented in any 
given case. 

Opposed to them is the opinion of Hon. J. M. Edmunds, late 
Commissioner of the General Land Office, the opinion of Judge 
Otto, and that of the late Attorney General Hoar, each of whom 
hold that the legislation of 1857 only covers the per cent, on per- 
manent reservations, and provides for charging up against the State 
expenditures on the national road, (see Judge Otto's opinion,) and 
not the per cent, on the public lands. President Lincoln held the 
law to be with Illinois. See his opinion, and the letters of Sena- 
tor Yates, Judge Jesse O. Norton, Colonel Forrest, and Colonel 
Fouke which may be found on subsequent pages. 

The President referred only to Judge Bates, his Attorney 



Settlement of A c counts. 3 3 

General, (for his mind was made up on the law of the case,) 
the question whether he had authority to direct the accounting of- 
ficer how to make up the account. Judge Bates, in his opinion, 
(see Two Per Cent, Reports from page 113 to 116,) held that it 
was the province of the Land Commissioner to do this, except 
that he should be required to include in the account the per cent, 
on the public lands as well as the per cent, on the permanent reser- 
vations. The Land Commissioner then credited Illinois with the 
amount of the two per cent, on both the public lands and reserva- 
tions, and charged up against her the amount he alleged had been 
expended on the national road in that State, and nothing of the 
amount spent outside of the State. The First Comptroller of the 
Treasury, Hon. R. W. Tayler, to whom I am under great obliga- 
tions for his uniform and obliging kindness, so disinterestedly 
extended, returned the account to him, with directions to change it 
by striking out as illegal the set-off he had applied, and to charge 
the State, if with anything, for a proportion of the money expend- 
ed in building roads leading to the State. This the Commissioner 
refused to do, and thus the question stands in the respective De- 
partments now. When the States run back from Ohio she would be 
charged, under this ruling, if it should be adopted and followed, 
with the money expended between that point and Cumberland, 
Maryland, when the three States through which it passes hold their 
respective parts of it as their seperate property by an act of Con- 
gress donating it to them, thus destroying its character as a public 
highway over. which the people of Ohio can pass free of charge. 
The same rule applies to Illinois and Indiana, except that the States 
west of Ohio would be charged with a greater proportion of the 
expenditure. Illinois would have for her share only a few worth- 
less embankments, crumbling culverts, and rotten bridges. 

Judge Otto, in his opinion, led the way into error, and others 
followed. He even construed the act of 1857 as granting to the 
other States only three-fifths of the five per cent, on permanent res- 
ervations. This the Secretary of the Treasury overruled. By some 
strange oversight the judge misquoted the title of the law and its 
language in two vital particulars. 

When the legislation of 1857 was adopted the national road had 
long passed out of the national mind and national action — had been 

5 



3 4 Settle m ent of A c counts . 

finally and forever disposed of, as far as the General Government 
was concerned, and hence was ignored in said legislation, which 
had reference only to the payment of five per cent, independent 
of road expenditures. The respective portions of it lying within 
the States of Maryland, Virginia, Pennsylvania, Ohio, and Indiana, 
had been donated by Congress, as has been stated, to said States 
on certain conditions, thus proving that it was held, treated and 
disposed of as the private property of the United States. Con- 
gress, as a trustee, had no right to make such disposition of trust 
property. Illinois never derived any more benefit from the money 
expended on it than did Missouri, for a foot of it was never comple- 
ted in said State, nor did the State ever attempt to appropriate, 
(see certificate of secretary of state of Illinois,) a foot of it; nor did 
the United States ever complete the road in Ohio or Indiana, or 
charge up a dollar against the fund on the books of the Treasury. 
(See report of Comptroller and Acting Register of the Treasury, 
and correspondence between Hon. William R. Morrison and Sec- 
retary Chase, published herein.) As with Illinois so with Ohio and 
Indiana. 

The Honorable Judiciary Committee nor Congress is asked for 
any additional legislation, except to declare the true intent and 
meaning of the act of March 3, 1857, to settle certain accounts be- 
tween the United States and the State of Mississippi and other 
States, so that each of the other States, in the language of the law, 
may be settled with on the "same principles" applied to Alabama, 
Mississippi, &c. For, as has been stated, there being no other 
States than Ohio, Indiana, Illinois and Missouri, to which the sec- 
ond section of that act would apply when passed, if said States do 
not realize the benefit of its provisions, (that is, Ohio, Indiana, 
and Illinois, for Missouri has already received her money,) said 
section is a nullity, and Congress was guilty of an idle folly in 
passing it. 

By reference to page 22, Two Per Cent. Reports, it will be seen 
that Land Commissioner, Edmunds, names Louisiana, Arkansas, 
Michigan, Wisconsin, Kansas, Iowa, and Minnesota, as the States 
which had received or had been allowed the whole five per cent. 
I called his attention to the fact that he had omitted from the list 
Florida, Alabama, Mississippi, Missouri, and Oregon, to which 
must be added Nebraska and Nevada. 



Settlement of A c counts. 3 5 

The opinions and arguments referred to were prepared in refer- 
ence to the claim of Illinois ; and while her equities are greater 
than those of either of the other States, they are all in a legal sense 
on~the"same footing, for the second section of the act of March 3, 
1857, declares that the Land Commissioner shall state an account 
with' each of the other States. 

The case of the State of Illinois stands thus : Congress was to 
expend the two per cent, fund in making roads leading to said 
State. If it be alleged that Congress ever made any such road, it 
was given away to other States, and thus the money was converted 
by Congress to other uses than that which the trust required ; and 
hence to charge the States of Ohio, Indiana and Illinois with the 
expenditure would be manifestly unjust If a State should be charg- 
ed with the money claimed to have been expended within the State, 
then Congress was guilty of attempting to build a road through the 
State, and after wasting the money belonging to that State, of with- 
drawing from the partnership and charging the loss to the 
State. 

It may not be amiss to add, that if the letter s, at the conclusion 
of the word "accounts," in the title of the act, and the same letter 
at the conclusion of the word "principles," in the second section 
of the act, refers to the "accounts" of the other States, and the 
"principles" upon which they shall be settled — as the First Comp- 
troller is inclined to think they do — then, in that case, it would 
seem that it should be taken as conclusive of the whole question. 

Is it improper to put to the conscience of Michigan, Missouri, 
Iowa, Wisconsin and the States west and south-west of Missouri 
this question ? 

Do you believe you should have enjoyed the righl of taxing the 
public lands as soon as entered or sold, and receive at once, as it 
accumulated in the Treasury, to be disposed of in such manner as 
your own Legislatures might direct, the entire five per cent, arising 
from the net proceeds of the sales of said lands, and have all this 
denied to Ohio, Indiana and Illinois? 

You each received a benefit, perhaps, equal to that received by 
those States from the Cumberland road. 

It opened up the way for settling your broad acres as well as 
theirs. It was the avenue which led to your borders, directly, or 



3 6 Settlement of A cccu nts. 

indirectly, and surely you will not refuse to do justice to your older 
sisters ! 

Is it too much to put to the conscience of Maryland, Pennsyl- 
vania and Virginia the following interrogatory? 

Do you think you should receive the benefit of the trust fund be- 
longing to Ohio, and then refuse to aid her in obtaining it from 
the trustee ? 

If Ohio had any of the two per cent, fund expended within her 
borders it was the fund belonging to Indiana, and if Indiana had 
any of the two per cent, expended within her borders, it was the 
fund belonging to Illinois, and where did Illinois get hers ? 

East of that State and west from Ohio, there comes an echo, 
Where ! Virginia, Pennsylvania and Maryland had no such fund 
and Missouri has received hers in full. 

If you are disposed to talk any longer about expenditures on the 
Cumberland road and hang that scare-crow up in the public field, 
go to your statute books, and there you will find the appropriations 
of such a general character you will be unable to determine what 
State or States to charge them to. 

Ohio and Indiana derive no surplus revenue from the Cumber- 
land road as I am advised. All they receive from it is expended 
in repairs, and it has been to those States a source of trouble and 
expense rather than profit. 

Stone is not as convenient to or plenty with them, as in the 
Mountains, and hence, it is not as cheap to keep up a McAdamized 
road therein as in Virginia, Pennsylvania and Maryland, nor is 
such a road near as valuable to them at to said States. 

Fix your attention again for a moment on this question. Was it 
just to use the two per cent, fund of Ohio, Indiana and Illinois in 
building a Turnpike road in Virginia, Pennsylvania and Maryland, 
and then give the road to those States? Yet that is exactly what 
was done. Suppose Congress had put a section in the Enabling 
Acts of Ohio, Indiana and Illinois, providing for such a state of 
things:— would it have been accepted? — rather would it not have 
been laughed at? 

Congress first granted them the money for a valuable considera- 
tion, and was to build roads leading to the States, by which was 
meant, free public highways. 



Settlement of A c counts. 3 7 

Was such a use made of it ? Was building a Turnpike through 
Maryland, Pennsylvania and Virginia, such a use of it? 

It was donated to said States by Congress before it was comple- 
ted and these States established toll gates upon it from time to time. 
They say to the citizens of other States, "you can travel over it, if 
you will pay for doing so, but not otherwise." This does not seem 
like pausing the "Scales of Justice" with an even hand. 

Ohio, Indiana and Illinois were ill favored. Three of the. orig- 
inal States received the benefit of their money, and States subse- 
quently admitted into the Union, had far more liberal grants made 
to them. Why should they be treated thus ? 

They have ever been loyal and devoted to the Constitution. 
Their gallant sons filled the ranks of the army during the Rebel- 
lion. And as Mississippi and Alabama, two rebel States, received 
in money the whole of the five per cent, should Ohio, Indiana and 
Illinois be turned away without it ? But some one may answer, 
they had a road within their limits ? 

That is exactly what will be clearly shown they did not have. 

If a road had been completed through their limits, it would be 
the grossest injustice to charge them, in part, with its construction, 
or in whole, and make a free gift of the road to Maryland, Penn- 
sylvania and Virginia. (This point, however has undergone a fuller 
discussion elsewhere.) Nothing is lost to the cause of right, by 
impressing it here and hereafter. 



MISAPPREHENSION OF FACT. 

Mr. Conger's statement, and the amount of lands granted to Ohio, 
Indiana, Illinois, Missouri, Michigan, Kansas, Oregon, Minne- 
sota, Iowa and Wisconsin. 

We now approach another and interesting feature of the question. 
When the joint resolution reported by the Judiciary Committee, 
construing the Statute of March 3, 1857, was before the House on 
a motion to suspend the rules, an honorable member from Michi- 
gan, Mr. Conger, arraigned the States of Ohio, Indiana and Illi- 
nois for greediness.. 

In consequence of the near approach of the termination of the 
session, the confusion and press of business, and debate being out 



3 8 Settlement of A c counts. 

of order, the injurious words which he dropped into the ears of 
members, had their effect. 

No sufficient reply could be made at the time [and it is ;; known 
they defeated the motion. It would not be proper to accuse Mr. 
Conger of being moved to his action, nor is there any such inten- 
tion, by improper motive ; but, that he committed a great error, 
and inflicted a great wrong on three States entitled to his respect 
and support, is unquestionable, and it is presumed that, when he 
acquaints himself with the subject he will repair, as far as he can, 
the injury done. While the report of the Committee was being 
read by Mr. Kerr, its author, the following transpired. 

{From the Congressional Globe.') 

"Mr. Conger. — I wish to ask the gentleman whether the per 
centage was not one per cent, in Michigan, and not five? 

"Mr. Kerr. — It was five per cent, I think, for every one of the 
States." 

The question implied the imputation that Ohio, Indiana and Illi- 
nois were asking for the payment of five per cent, while Michigan 
had only received one per cent. Mr. Kerr answered correctly, but 
still there was a question as to which was right, that lost the meas- 
ure votes. 

If Mr. Conger will refer to the enabling act for his State, or will 
read this document, he will see that five per cent, was granted to 
and received by Michigan. It is strange that he should have over- 
looked so important a fact in the history of his State. She receiv- 
ed or is receiving it ALL, while Ohio, Indiana and Illinois have 
only received three -fifths of it ! 

Besides let me repeat ; for I wish to impress the truth, that Mich- 
igan enjoyed the right of taxing the public lands as soon as they 
passed into private ownership ; while Ohio, Indiana and Illinois 
were deprived of this right for five years thereafter ! 

The following also transpired during the pendency of the motion 
to suspend the rules. 

"Mr. Conger. — I ask the attention of the House for a few mo- 
ments, till I can show how much land Congress has given to these 
States in lieu of this five per cent. 

The Speaker pro tern, (Mr. Scofield.) — The question is not 
debatable, except by unanimous consent. 

Several members objected. 

Mr. Maynard. — Let us hear the law. 



Settlement of Ac -counts. 39 

Mr. Kerr. — The statement which the gentleman from Michigan 
(Mr. Conger,) desires to make has no relevency to this question. 

Mr. Logan. — We never received any land in lieu of this claim. 

Mr. Conger. — I want to show that Congress has already granted 
to the State of Indiana what is equivalent to $1,500,000, and nearly 
half as much to Illinois and Ohio." 

General Logan was right and Mr. Conger was mistaken. No 
lands were ever granted by Congress to Ohio, Indiana and Illinois 
in lieu of the five per cent., or any part thereof. In view of the 
bold declaration that Congress had made such a grant in liquidation 
of the five per cent, it is a matter of astonishment that the motion 
to suspend the rules received any votes. Of course, if the States 
had received already, lands in payment of their claims, they had 
no right to ask payment again. 

One gentlemen who intended to vote for the resolution informed 
me that he went to Mr. Conger's seat and asked him if he was cor- 
rect in his statement, and he said he was. 

The gentleman and several others around him, then voted 
against it ; and yet Mr. Conger was never more mistaken. If there 
is any such record, let it be produced. Strange that Mr. Conger 
should have got such an impression, or that if there is such a record 
that it was never heard of before. 

But the wonderful part of Mr. Conger's statement is this . 

"I want to show that Congress has already granted to the State 
of Indiana what is equivalent to $1,500,000, and nearly half as much 
to Illinois and Ohio." 

It is obvious from Mr. Conger's remark and the circumstances 
under which it was made, that his object was to impress the House 
with the belief that Ohio, Indiana and Illinois had received enor- 
mous grants of public lands ; far more than their just proportion, 
and, hence, should not be paid the two per cent. 

If he was correct, that they had received an undue proportion 
of lands, in the way of grants, from Congress; still what could 
that have'-to do with the question under consideration, is impossi- 
ble to tell. 

If it were to be viewed in regard to that point alone, it would 
not be necessary to notice it ; but it had and has a deeper sig- 
nificance. 



40 Settlement of Accounts. 

The impression he sought to leave was that Ohio, Indiana and 
Illinois had been actuated by greediness and had, already, received 
more than they were entitled to, and more than the relative propor- 
tion granted to other States. Is this true ? 

I, at once, entered upon an investigation of the subject, and the 
following tabular statements were furnished to me from the General 
Land Office, and they give the correct answer. (See Land Office 
Report 1870, from which the statements were taken.) 



OHIO. 



Quantity of land granted by Acts of Congress to the State of 
Ohio, as given in table No. 19 of the Annual report of the General 
Land Office for 1870, page 504, viz: 

Approved swamp selections, acres 25,640.71. 

Internal Improvements, " 1,243,001.77. 

Schools, " 704, 488 . 00. 

Universities, " 69,120.00. 

Salines, - " 24,216.00. 

2,066,466.48. 
See notes to said table No. 19. 



INDIANA. 



Quantity of land granted by Acts of Congress to the State of 
Indiana, as given in table No. 19 of the Annual Report of the 
General Land Office for 1870, page 504, viz: 

Approved swamp selections, acres 1,263,733.28. 



Internal Improvements, 

Schools, 

Universities, 

Salines, 

Seats of Government and Public Buildings,. 



1,609,861.61. 

650,317.00. 

46,080.00. 

23,040.00. 

2,560.00. 



3.595.59I-89. 
Sec notes to said table No. 19. 



Settlement of Accounts. 



4i 



ILLINOIS. 

Quantity of land granted by Act of Congress to the State of 
Illi?iois, as given in table No. 19 of the Annual Report of the Gen- 
eral Land Office for 1870, page 504, viz: 

Railroads, . acres 2,595,053.00 

Approved swamp selections, " 1,489,120.01 

Internal Improvements, ., " 533,382.73 

Schools, " 985^66.00 

Universities, " 46, 080. 00 

Salines,- " 121,629.00 

Seat of Government and Public Buildings, " 2,560.00 



See notes to said table No. 19. 



5,772,890.74 



MICHIGAN. 

Quantity of land granted by Act of Congress to the State of 
Michigan, as given in table No. 19 of the Annul Report of the 
General Land Office for 1870, page 504, viz : 
Agricultural Colleges, acres 225,253.88. 



Railroads, (approved,) , 

Swamp selections, (approved,) 

Internal Improvements, 

Schools, , 

Universities, 

Wagon roads, estimated, 

Ship Canal, 

Salines, < 

Seat of Government and Public buildings, . . , 



See notes to said table No. 19. 



1 2,909,103.62. 
' 5,691,878.66. 
' 500,000.00. 
' 1,067,397.00. 
: 46,080.00. 
c 1,718,613.00. 
{ 1,250,000.00. 

46,080.00. 

13,200.00. 

13,467,606.16. 



WISCONSIN. 

Quantity of land granted by Acts of Congress to the State of 
Wisconsin, as given in table No. 19 of the Annual Report of the 
General Land Office for 1870, page 504, viz: 

Agricultural Colleges, acres 240,007.73 

1,642,973.74 

3,029,738.55 

1,183,728.42 

958,649.00 

92,160.00 

250,000.00 

6,400.00 



Railroads, (approved, ) , 

Swamp selections, (approved, ) 

Internal Improvements, 

Schools, 

Universities, 

Wagon roads, estimated, 

Seat of Government and Public Buildings,. 



See notes to said table No. 19. 



7,403,657.44 
6 



42 Settlement of Accounts. 

IOWA. 

Quantity of land granted by Acts of Congress to the State of 
/bwa, as given in table No. 19 of the Annual Report of the Gen- 
eral Land Office for 1870, page 504, viz : 

Agricultural College, acres 240,000.96. 

Railroads, (approved,) " 3,360,825.27. 

Swamp selections, (approved,) " 867,625.04. 

Internal Improvements, " 1,333,079.90. 

Schools, " 905,144.00. 

Universities, " 46,080.00. 

Ship Canals, " 200,000.00. 

Salines, " 46,080.00. 

Seat of Government and Public Buildings, " 3,840.00. 



See notes to said table No. 19. 



7,002,675.17. 



MINNESOTA. 

Quantity of land granted by Acts of Congress to the State of 
Minnesota, as given in table No 19 of the Annual Report of the 
General Land Office for 1870, page 504, viz : 

Agricultural Colleges, acres 119,852.17. 

Railroads, (approved,) " 2,626,984.64. 

Swamp selections, (approved,) " 769,371.15. 

Internal Improvements, " 500,000.00. 

Schools, " 2,969,990.00. 

Universities, " 46,080. 00. 

Salines, " 46,080. 00. 

Seat of Government and Public Building, " 6,400.00. 



See notes to said table No. 19. 



7,084,757.96. 



OREGON. 

Quantity of land granted by Acts of Congress to the State of 
Oregon, as given in table No. 19 of the Annual Report of the Gen- 
eral Land Office for 1870, page 504, viz : 
Internal Improvements, ■. acres 500,000. 



Schools, 

Universities, 

Wagon roads, estimated, 

Salines, , 

Seat of Government and Public Buildings,. 



3,329,706. 

46,080. 
1,813,600. 

46,080. 
6,400. 



5,741,866. 
See notes to said table No. 19. 



Settlement of Accounts. 43 

KANSAS. 

Quantity of land granted by Acts of Congress to the State of 
Kansas, as given in table No. 19 of the Annual Report of the 
General Land Office for 1870, page 504, viz : 

Agricultural Colleges, acres 90, 000. 40 . 

' 2,908.92. 
' 500,000.00. 
' 2,891,306.00. 
' 46,080.00. 
' 46,080.00. 
1 6,400.00. 



Railroads, (approved,). 

Internal Improvements, 

Schools, 

Universities, 

Salines, 

Seat of Government and Public Buildings, 



See notes to said table No. 19. 



3>58 2 >775-3 2 - 



MISSOURI. 



Quantity of land granted by Acts of Congress to the State of 
Missouri, as given in table No. 19 of the Annual Report of the 
Commissioner of the General Land Office for 1870, page 504, viz : 

Agricultural Colleges, acres 244,384.51. 

Railroads, (approved,) " 1,715,435.00. 

Swamp selections, (approved,) " 4,331,936.26. 

Internal Improvements, " 500,000.00. 

Schools,. " 1,199,139.00. 

Universities, " 46,080.00. 

Salines, " 46,080.00. 

Seat of Government and Public Buildings, " 2,560.00. 

8,085,614.77- 
See notes attached to said table No. 19. 



Michigan with an area containing 46,548,480 acres less than 
Ohio, Indiana and Illinois, has received 2,032,657.05 acres of the 
public domain within her limits more than the three States com- 
bined received within their respective limits ; or, in other words, 
to state the results in round numbers, Michigan received more than 
one-third of the lands, Ohio a little over one-twelfth, Indiana less 
than one-sixth, and Illinois about the same. In this statement I 
have not gone into fractions, but sought only substantial approxi- 
mations. I do not write in reproach of Michigan, but to show she 
ought to deal kindly with the other States. 



4 4 Scttle?n ent of A c counts . 

Let us give a short 

RECAPITULATION. 

And then the Honorable Member will more clearly see his error, 
and the injustice he did to his neighboring States. 

Granted to Ohio, acres 2,066,466.48. 

" Indiana, " 3,595*591*89. 

" "Illinois, " 5,772,890.74. 



Total, " 11,434,949.11. 

Granted to Michigan, acres 13,467,606.16. 

Deduct grants to Ohio, ) 

Indiana and Illinois, J " 11,434,949.11. 

Excess in favor of Michigan, " 2,032,657.05. 

So it appears that Michigan has received in grants from Congress 

TWO MILLION, THIRTY-TWO THOUSAND, SIX HUNDRED AND FIFTY- 
SEVEN, FIVE HUNDREDTHS ACRES OF LAND MORE THAN HAS BEEN 
GRANTED TO THE STATES OF OHIO, INDIANA AND ILLINOIS COM- 
BINED ; eleven million, four hundred and one thousand, one 
hundred, thirty-nine and sixty-eight hundreths (11,401,139,68) 
acres more than Ohio; 9,872,014.27 acres more than Indiana; and 
7,694,715.42 acres more than Illinois. Her Representative should 
not have been the one to "cast the first stone." 

When it is considered that, at the time of her admission into the 
Union, Michigan secured the right to tax the public lands as soon 
as they were entered, and received at once the five per cent, arising 
from their sales, and, afterwards, such enormous grants of land, far 
more than any other State, while Ohio, Indiana and Illinois have 
had paid to them only three-fiths of the five per cent, and were 
denied the right to tax the public lands for five years after their en- 
try, and yet received such small grants, comparatively, how can 
Michigan deny to them so small a measure of justice as the Two 
Per Cent ? She can not do it ! She will not do it ! 

Mr. Conger himself will not do it, when he looks over the whole 
ground. He unquestionably acted under a " misapprehension of 
fact." Ohio, in view of the limited grants made to her, in com- 
parison to those made to other States, is entitled to the relief asked. 
She received far less than any other State, and Indiana received the 
next smallest grants, except Kansas, which was slightly less ; and 
those made to Illinois are comparatively small. 



Settlement of Accounts. 45 

By an examination of the figures it will be ascertained that far 
less has been granted to them in the aggregate than to any other 
three States selected. 

They were the earliest of the Northwestern States admitted into 
the Union, and stood progressivsly in advance of settlement and 
civilization, which, through them, so rapidly over-spread*the then 
distant and unpeopled West. 

Their earlier settlers underwent many hardships, and the Gene- 
ral Government should not have driven such a close bargain with 
them, and should not now construe the contract in its own favor; 
especially as the law is plain and in view of the fact that the 
Government was to be benefitted more than the States in the con- 
struction of the Cumberland road, by increasing the value of, and 
bringing its untold acres sooner into market, which Con- 
gress, at the time acknowledged, as well as one other important 
fact, to-wit: That the road was to be constructed T-H-R-O-U-G-H 
the States. 

The preamble to "An act to authorize the appointment of Com- 
missioners to lay out the road therein mentioned." Approved May 
15, 1820, (see U. S. Stat, at Large, vol. 3, pp 604-5,) reads as 
follows : 

"Whereas, by the continuation of the Cumberland road from 
Wheeling, in the State of Virginia, through the States of Ohio, In- 
diana and Illinois, the lands of the United States may become more 
valuable, 

Be it enacted," &c. 

This fundamental legislation should not be over-looked. The 
public lands were to be made "nio7-e valuable 1 ' by the construction 
of the road and it was to run "through" the States of Ohio, Indi- 
ana and Illinois. 

The chief grants of land to Illinois was in aid of the construction 
of the Illinois and Michigan Canal, a work of national importance, 
and the Central Railroad. 

The first grant was made as early as 1827, of 289,867 acres, in aid 
of the Canal. Of the 5,772,890.74 acres granted to Illinois, 2,595,- 
053.60 acres were granted in aid of the Central Railroad, and as the 
price on the alternate sections, reserved by the Government, was 
increased from $1 25 to $2 50 per acre, it lost nothing by the grant 
as those reserved were sold at the increased valuation. More than 



46 Settlement of Accounts. 

this, the Government reserved the right of transporting any property 
or troops over the road, (which is declared in the law shall be and 
remain a public highway for the use of the government of the United 
States,) free of toll or other charge (see U. S. Stat, at large, vol. 9, 
page 367, sec. 4), so that instead of the Government being a loser, 
it was a great gainer by the grant. This transportation was im- 
mense during the late civil war, and there is no estimating it in the 
future. The privilege alone was of more value than all the lands. 
So great was the burthen imposed on the Central Railroad Com- 
pany that they insisted they should be paid something, and the Gov- 
ernment did pay them large sums, but the company claim that 
other large sums, to which they regard themselves equitably enti- 
tled, were never paid. It was not compulsory on the Government 
to pay anything, unless there was some subsequent legislation on 
the subject of which I am not apprised ; there is believed to have 
been none, but if any transpired it was gratuitous on the part of 
Congress. Take, then, the grant of lands made in aid of the Cen- 
tral Railroad from the aggregate of lands granted to Illinois, and 
the State stands low down in the list of grantees. 

Still more. Congress reserved to themselves, in the act making 
the grant, the exclusive right to fix the price to be paid the com- 
pany for transporting the U. S. Mails over the road, and thus 
checked all possibility of imposition, and again was greatly the 
gainer by the grant. In view of these facts, it would be manifestly 
unjust to charge up one acre on account of this grant against the 
State of Illinois. 

Beyond all this, to aid in the construction of the Central Rail- 
road from the mouth of the Ohio river to the city of Mobile, the 
provisions of the act, as made applicable to Illinois, were conferred, 
in every particular, on the States of Alabama and Mississippi, Con- 
gress thus looking in its legislation to the establishment, for the in- 
terest of the Genera] Government, at least in part, of a great line of 
road, which was not, however, and did not in fact cost it anything, 
in consequence of the increased value put upon the public lands or 
alternate sections reserved, thus not only realizing, in money, the 
whole of their original price, but advantages far beyond it in value. 
It will hardly be questioned but that Congress had a keen eye to 
the interest of the Government in the arrangement, and made vastly 
by it. 



Settlement of A c counts. 4 7 

The Commissioner of the General Land Office (see his report of 
1870, pp. 208 and 209), says of this experimental grant: 

"It (the government) was endowed by the constitution with the 
guardianship and disposal of proprietary right in the national terri- 
tory. The price of the public lands had long since been fixed by 
law at $1 25 per acre, and even at this very low price large portions 
had remained a drug in the market, protracting the period of their 
disposal, and thus enhancing its aggregate expense. At this point 
it was suggested by a Western statesman that railway enterprises 
through the public domain should be endowed with a certain 
amount of public land, the price of the alternate sections being 
doubled in order to save the national revenue. The increased 
value conferred upon these lands by the presence of the railway was 
far greater than the increase of price demanded. 

This experiment was tried in the case of the Illinois Central Rail- 
road, the even-numbered sections for six miles on each side of the 
line being granted by act of September 20, 1850, to the State of 
Illinois in aid of its construction. The aggregate amount of land 
donated under this act was 2,595,053.60 acres, which, at the mini- 
mum price, amounted to $3,243,750. The double of this sum rep- 
resented the aid that was supposed to be given thereby to the rail- 
way, viz: $6,487,500. But by retaining the lands until the gov- 
ernment lands along the line had been sold, the company was 
enabled to realize much greater prices." 

The grants to Indiana were in aid of the Wabash and Erie Canal 
and other important improvements. 

But, without running over the history of these grants or those 
made to Ohio, or stating the purpose to which they were devoted, it 
is enough to say that the United States derived great advantage 
from the donations by an increase in the value of their lands and 
facilitating their sale. It seems, therefore, absolutely unkind, not 
to say cruel, to erect obstacles in the way of Ohio, Indiana 
and Illinois obtaining their Two Per Cent. Fund, especially when 
Congress has heretofore granted it to them, and its payment with- 
held clearly against justice and law. 



The Expenditures on the Cumberland Road not Charged to the 

Two Per Cent. Fund of the States on the 

Books of the Treasury. 

The following will show that no attempt was ever made in the 
Treasury Department to charge against the Two per Cent, of Illi- 
nois the expenditures on the Cumberland road. As with Illinois so 



48 Settlement of Accounts. 

with Indiana and Ohio. The idea of attempting to make one set- 
off the other is of very strange origin, and most certainly 
cannot fortify itself behind the Act of March the 3d, 1857, nor can 
it do so behind any previous legislation, on the principles of justice 
or reason. Looking alone to the Cumberland road legislation when 
or how or in what manner can that be pleaded against the states 
when, by so doing, manifest illegality and injustice would be done. 
Looking to the legislation of 1857 all doubts are removed and the 
States stand fully vindicated except in the non-execution of the law. 
When that is executed, and not until then, will "equal and exact 
justice" be meted out to Illinois, Indiana and Ohio. There is no 
reason why a part of the expenditures on the Cumberland road 
should be charged against the trust fund of said States that does 
not equally justify charging it all to them, and if all, is it proposed 
to direct the government of the United States to proceed to collect 
the overplus ? To test the truth of the statement let it be in- 
quired how, under the act of 1857, just enough of the expenditures 
on the road to set off the claims of the States can be used without 
the balance being disposed of or accounted for, not as a matter 
of convenience, but legally. 

Treasury Department, Comptroller's Office, ) 
September 3, 1863. 3 

Hon. I. N. Morris, Washington City : 

Sir — Your communication, of yesterday's date, has been received 
and in reply thereto you are informed that no account has ever 
been kept or stated in this office for the two-fifths of five per cent, 
of the net proceeds of public lands lying within the State of Illinois. 

Very respectfully, 

R. W. TAYLER, 

Comptroller. 

Treasury Department, Register's Office, } 
September 3, 1863. j 

I hereby certify that the records of this office show that no ac- 
count has been kept with the State of Illinois on account of the 
two per cent. fund. R. SOLGER, 

Hon. I. N. Morris. Acting Register." 

Washington, May 3, 1864. 
Hon. S. P. Chase, 

Secretary of the Treasury : 
Sir — Your report on the two per cent, fund of Illinois transmitted 
to the House of Representatives in response to its resolution of the 



Settlement of Accounts. 49 

3d inst., is before me. If you will carefully re-examine the subject 
I think you will come to the conclusion that you have not fully 
complied with the request the House made. The books of the 
Treasury must certainly show the dates when the amounts received 
from the public lands sold in the State of Illinois since January 1, 
1 819, were paid into your department from time to time. Two per 
cent, upon those amounts will be the amount of the road fund to 
which said State is entitled. The Register of the Treasury must 
therefore be mistaken when he states the books of his office do not 
show any payment made into the Treasury on account of said fund. 
The second part of the resolution you have made no reply to. It 
is in these words: "Whether anything is charged in the Treasury 
Department against said fund, or any offset exists against it there 
and if so, when and how did said offset or charge occur, and was 
the same made, and upon what basis — stating particularly the amounts 
and dates of said charge or offset, and the respective times or 
manner in which said two per cent, fund was expended, and where, 
if at all, and the evidence of such expenditure, and the authority 
fork." 

I hope, sir, you will oblige the State of Illinois, and myself, by 
furnishing to the House, as soon as possible, an additional and 
fuller report on the subject. I am appraised of the nature and 
character of the information, which the Land Department can 
furnish. Very respectfully, 

WM. R. MORRISON. 

Treasury Department, June 2, 1864. 

Sir — I have received your letter of the 3d ult., asking for further 
information than that contained in my letter of May 6th, in reply 
to a resolution of the House of Representatives of May 2, inquiring 
in regard to "the amount received into the treasury of the United 
States of the two per cent, fund arising from the net proceeds of the 
sales of the public lands made in the State of Illinois, since January 
1, 1819." 

The books of the Register of the Treasury do, as you suggest, 
show the amount received into the Treasury from the public lands 
sold in the State of Illinois since January 1,1819. A table is here- 
with transmitted, showing the receipts for each year, up to the 
present time, since 1819. The books of the department do not, 
however, show anything in regard to such a fund as that referred 
to in the resolution, either in the way of receipts, or of charges or 
offsets against it. I am, very respectfully, 

S. P. CHASE, 
Secretary of the Treasury. 
Hon. Wm. R. Morrison, 

House of Representatives. 

7 



5 o Settlement of A c counts. 

THE STATES LOST LARGELY BY MILITARY GRANTS. 

Illinois lost greatly more by Congress taking the lands given for 
military purposes out from under the contract granting her the five 
per cent. — which it clearly had no right to do — than the five per 
cent. The account of the State 'stands thus : 

Granted for military purposes 9>533>563 

At $ i 25 per acre comes to $11,917 653 

Five per cent, on the amount 595>853 

The above calculation embraces the lands patented to the soldiers 
in the war of 181 2. The number of acres of these I do not remem- 
ber, and have no information in my immediate possession to which 
I can refer to ascertain the fact, but think about 3,000,000. A care- 
ful examination of the contract between the State and the United 
States has satisfied me they should be embraced in the statement, 
but let them be excluded from it, still the State has been a loser to 
the amount of five per cent, on $6,500,000 acres in round numbers. 
This consideration is by no means an unimportant one, casting, as 
it does, a strong equitative light over the features of the claim. 

There was granted for military purposes, in Indiana, 1,311,956; 
in Ohio, 1,817,415 acres. 

These States, of course, lost by the grants, a fact which should 
not be overlooked. The present distinguished Secretary of the In- 
terior submitted a very able report to the House of Representatives, 
enforcing the claims of Ohio, Indiana, Illinois and Missouri to three 
per cent, on the military lands within their respective limits. (See 
Reports of H. R., 29th Congress. 

To prohibit a State from taxing the public lands for five years 
after their sale, on condition of receiving five per cent, from their 
net proceeds, then take a part of them out from under the operation 
of the contract, without her consent and without remuneration, and 
pay her only three-fifths of the amount actually received, looks as 
though an injustice had been done, and that the injury should be 
repaired. 

The following statement should have appeared after the estimates 
of Chief Engineer Totten, but was accidentally omitted in the 
proper place. I give it here, and leave others to reconcile the con- 
flicting results: 



Settlement of Accounts. 5 1 

STATEMEMT OF THE TOTAL AMOUNT EXPENDED IN CONSTRUCTING AND 
REPAIRING (INCLUDING BRIDGING) THE CUMBERLAND ROAD. 

Amount expended east of Wheeling $1,685,792 28 

" " " " " for repairs 1,117,95458 

" " in Ohio, east of Zanesville 792,937 28 

" " " " west " " 370,924 25 

" " " Indiana 1,131,01572 

" " "Illinois 730,76802 

Surveying road from Wheeling to Mississippi river... 10,265 85 



Total $5,842,347 09 

Treasury Department, Warrant Room, ) 
March 10, 1871. } 

Hon. I. N. Morris . 

Sir — The foregoing is a statement of the amount expended on 
account of the Cumberland road from its commencement to date, 
as shown by the records of this office. 

Very respectfully yours, 

J. H. SAVILLE, Chief Clerk. 
However and from whatever standpoint these claims may be 
viewed, the following conclusions are inevitable : 

STATEMENT OF POINTS. 

First — That the law is with the States. 

Second — That the equity is with the States. 

Third — That, if defeated, it will be injustice to the States. 

Fourth — That it is no matter of surprise, in view of all the facts, 
that Congress in 1857, should pass an act directing the Two Per 
Cent, to be allowed and paid to all the States. So plain was the 
justice of the measure that Congress adopted it of its own motion. 

Fifth — That it appears too evident to be doubted that the 
provision to be found in some of the laws making appropriations to 
the Cumberland road, to the effect that the sum should be replaced 
in the Treasury out of the Two Per Cent, of Ohio, Indiana, Illi- 
nois and Missouri, when the entire amount thereof was but a mere 
trifle towards constructing the road, was resorted to as a legislative 
finesse, or as a mere bagatelle, to ease the consciences of Southern 
members, who did not believe the General Government had the 
constitutional power to make such improvements out of the National 
funds. 

Sixth — That said States have never received any part of the Two 
Per Cent, land fund. 



52 Settlement of Accounts. 

Seventh — That no part of it was ever expended in pursuance of 
the contract made between said States and the United States. 

Eighth — That all States in the Union, in which public lands were 
located, except Ohio, Indiana and Illinois have received, or are in 
process of receiving it, directly from the United States Treasury. 

Ninth — That to withhold its payment from them would be un- 
justly discriminating against said States. 

Tenth — That the States interested in said fund should all be 
dealt with alike. 

That the language of the act of March 3, 1857, entitled "An act 
to settle certain accounts between the United States and the State 
of Mississippi and other States," requires said fund to be "allowed 
and paid." 

Twelfth — That said act makes no provision for a set-off, nor does 
its history show such a thing was ever contemplated. 

Thirteenth — That if a set-offis applied, it must be put in said act 
by construction, for it is nowhere found provided for in the same. 

Fourteenth — That to so construe it would render the second sec- 
tion thereof absurd and nonsensicial, and would be repugnant to 
every legal rule of construction. 

Fifteenth — That said act was passed at the instance and for the 
benefit of the States to which it applies, and is based on the assump- 
tion of the indebtedness of the United States to them, and not in- 
tended to apply to a settlement in which the States were to be 
brought out in debt to the United States. 

Sixteenth — That there is no authority for applying just enough of 
the expenditures on the National road to set off their two per cent, 
fund, without, in some way, rationally disposing of the balance. 
The States are either liable to account for it all or none of it. To 
assume that they are liable for a part, and the balance can be dis- 
regarded, would be to assume that an indivisible thing could be di- 
vided, and the set-off a mere convenience to the United States. 

Seventeenth — That it is not legally demonstrable that the States 
can be charged with the construction of roads leading to them, 
and also with the amount expended within them, under their con- 
tracts with the United States. Illinois is only charged in her 
"stated" account with the money alleged to have been expended 
within her limits, and if the accounts of Ohio and Indiana should 
be stated on 'he same principle, they, as well as Illinois, would re- 



Settlement of Accounts. 53 

spectively be found to be charged with the very money (long be- 
fore the National road reached the eastern limits of Ohio) appro- 
priated and expended by Congress in the States of Maryland, 
Pennsylvania and Virginia, which States never had any Two Per 
Cent. fund. 

Eighteenth. — That every statute should be so construed, if possi- 
ble, to render it just, and make every part harmonize. 

Nineteenth — That a statute which provides for the allowance and 
payment of a sum found due a State upon the "statement" of her 
five per cent, account on public lands and Indian reservations, can 
apply alone to such a "statement," and to nothing beyond it up- 
provided for. If the United States are in debt to an individual on 
a particular account, and Congress passes a law to "allow and pay 
it," an accounting officer would have no right to set up that, fifty 
years before, the United States held funds in trust belonging to the 
individual, and had expended them for his use, and therefore they 
would not pay him. What absurdity this would be ! Such is the 
present case, except in this, that it would perhaps be more proper to 
say that the United States forced the States into a partnership with 
them, against their consent, took their money without asking and 
sunk it in an enterprise of its own, then stopped business and 
charged the loss all up to the States ! 

Twentieth — No one has ever questioned the equity of these 
claims. 

Twenty-first — That admitting the two per cent, was expended in 
strict compliance with the contract between the United States and 
the States, which is not the fact, still the act of 1857 removed all 
pretence on the part of the government to it, or any part of it, 
Congress providing in said act it should be allowed and paid to the 
States, thus placing all the States referred to on an equality. 

Twenty-second — That the account being stated on the basis of the 
Enabling Acts of the States and that of March 3, 1857, the con- 
clusion is inevitable that the public officers have no right to stop at 
the words "state an account between the United States and each of 
the other States," and ignore the other words, "allow and pay the 
same," following them. 

Twenty-third — That the policy of a law cannot be properly in- 
quired into by one charged with its execution. 



5 4 Settle m ent of A ccou nts . 

Twenty -fourth — That the National road was an enterprise of a 
national character, and was undertaken and prosecuted for a 
national purpose, and not to benefit any one individual State. 
Congress held control and ownership over it as national property, 
and finally made a donation of the several parts of it lying within 
the respective limits of Maryland, Pennsylvania, Virginia, Ohio 
and Indiana to those States. 

If it were conceded that the States should be charged with the 
two per cent., no accountant, however skillful, could determine 
from the laws how much, or what proportion, to charge to any one 
State, or on what basis the calculation should be made ; whether 
population, territory, wealth or what. The officers of the govern- 
ment do not agree. Some of them who have had the account of 
Illinois before them say the State can only be charged with the 
money spent within the State ; while others say: No, you have only 
the right to charge against the State money spent in building a 
road leading "to" the State. (See correspondence on this point 
of Hon. R. W. Tayler and Hon. Joseph S. Wilson.) 

If twenty men were put at work on the job, with instructions to 
figure up the result against the States at all events, there would be 
as great a confusion of ideas among them, in attempting to reach 
it correctly, as of tongues among the Babelites. 

Then let controversy cease and justice be done. To inculcate 
truth and justice should be our constant aim. 

No government can long survive a wilful violation or neglect of 
this rule, especially our own, in its dealings with the States com- 
posing it. 



CONCLUSION. 

It is proper, in closing my argument, to state that while the 
lamented Lincoln thought Illinois should not press her claim 
during the war (and it is well known I was then seeking. only its 
establishment, not its payment) he had no doubt it should be fully 
paid, as it would have been during his administration had he 
lived. Mr. Johnson would do nothing about it, though I made a 
written proposition to him, as an advisory measure, to take the 
opinion of three able lawyers on the law, one to be named by the 
State, one by himself, and they two to select a third, pledging my- 



Settlement of A c counts. 5 5 

self that the State would take a man east of the Alleghany Moun- 
tains, who could not be suspected of any bias, and trr s give the 
State something like an equal chance, and not send her before an of- 
ficer self-educated exclusively in the interest of the General Govern- 
ment, and in whom it soon becomes second nature to decide in its 
favor, however honest he may be, and I cast no imputation on the 
integrity of any one. 

There were various reasons why the State did not institute pro- 
ceedings in the Court of Claims for the recovery of her demand, 
among others the following: 

First — Doubts existed of the jurisdiction of said Court, as the 
Act of 1792, (I think that is the date of it, though I write from 
recollection) gives the Supreme Court of the United States exclu- 
sive jurisdiction in all cases where a State is a party. Hence 
while the act establishing the Court of Claims gives that court ju- 
risdiction over the matter in question, perhaps it may not give it 
over the parties. 

Second — That the State did not believe litigation should exist, if 
it could by any possibility be avoided, between a State and the 
United States. 

Third — That even if the Court of Claims rendered a judgment 
in favor of the State against the United States ; still the claim 
would have to go to Congress for payment. 

Fourth — That notwithstanding the opposition to it on the part 
of some of the officers in the Executive Department, she believed 
the Government would pay it without suit and so believes now. 
To remove all scruples and doubts about the law of 1857, she solic- 
its Congress to interpose and declare its true meaning. She ap- 
pears before that Body not alone, but in company with her two 
elder sisters, through whose veins run kindred blood, Ohio and In- 
diana, equally worthy, and makes a joint request. These three great 
States, whose honor is above reproach ; whose patriotism is above 
suspicion ; whose robes are untarnished ; who stand up before the 
world in all the conscious pride of purity, are incapable of asking 
anything that is not right, and this much they have full confidence 
to believe Congress will not hesitate to grant to them. 

ISAAC N. MORRIS, 

Of Counsel. 

Quincy, Illinois, Oct. 12, 1871. 



OPINION 



OF THE LATE 

PRESIDENT LINCOLN. 

HIS ENDORSEMENT ON AN ENVELOPE IN WHICH HE 
TRANSMITTED TO THE INTERIOR DEPARTMENT CER- 
TAIN PAPERS PERTAINING TO THE TWO PER CENT. 
CLAIM OF ILLINOIS. 

' ' Hon. Secretary Interior : 

" Illinois has again presented her claim for the two per cent. I 
do not think it gracious in her to do so at this time of our national 
troubles. My opinion of the law has undergone no change. I 
think the law is with the State. I therefore desire you to take up 
the case and act upon it as you may think the law is." 

"A. LINCOLN." 
president Lincoln's letter. 
Executive Mansion, Washington Aug. 26, 1863. 
Hon. I. N. Morris : 

Dear Sir : — Your note, asking what you were to understand, was 
received yesterday. Monday morning, I sent the papers to the 
Secretary of the Interior, with an indorsement that my impression 
of the law was not changed, and that I desired him to take up the 
case and do his duty according to his view of the law. Yesterday 
I said the same thing to him verbally. Now, my understanding is 
that the law has not assigned me, specifically, any duty in the case, 
but has assigned it to the Secretary of the Interior. It may be my 
general duty to direct him to act, which I have performed. When 
he shall have acted, if his action is not satisfactory, there may, or 
may not, be an appeal to me. It is a point I have not examined, 
but if then it be shown that the law gives such appeal, I shall not 
hesitate to entertain it when presented. 

Yours, truly, 

A. LINCOLN. 



Settlement of Accounts. 5 7 

EVIDENCE OF MR. LINCOLN'S VIEWS. 

Jacksonville, Ills., May 20, 1865. 
Hon. I. N. Morris : 

Dear Sir: — In reply to yours of the 15th inst., I reply that it 
was, I believe, some time in March, 1863, at the White House in 
Washington, that I urged upon President Lincoln a request that he 
should read your argument in favor of the claim of Illinois to the 
Two Per Cent. Fund, and I understood him to reply that it was of 
no use to read it ; that he had made up his mind as to the rightful 
claim of the State of Illinois to the Two Per Cent. Fund, but that 
it was now no time to be pressing such a claim, while the govern- 
ment was hard pressed to raise the means necessary to prosecute 
the war. I thought the President seemed clear that at another 
time the State might justly prosecute and recover the claim. 

Very Respectfully, 

RICHARD YATES. 

Washington, D. C, July 26, 1865. 
Hon. I. N. Morris : 

Dear Sir : — In response to your inquiries of yesterday, I have to 
say that I was present at one or two interviews between yourself 
and Mr. Lincoln, some two years ago, in relation to the Two Per 
Cent. Fund. On one of these occasions the different acts of Con- 
gress relating to the subject were read and freely discussed by all 
three of us. I understood Mr. Lincoln to hold distinctly that the 
law was with the State of Illinois, on the question, but that he 
thought it ungenerous to press the clairr^ at that time, while we 
were laboring under such pressing financial difficulties. 

I am, very respectfully, 

JESSE O. NORTON. 

Washington, February 20th 1864. 
" Dear Sir: In reply to your inquiry I will state I have examined 
your report on the Two Per Cent. Fund due from the United 
States to the State of Illinois, submitted to Governor Yates in 
April, 1863, and particularly that part of it in which you refer, on 
the twentieth and twenty-first pages, to an interview I had with the 
President, and what was said between us on the subject at that in- 
terview, held on the 23d of March, 1863, when I read to him your 
written statement, bearing date March 19th, 1863, and I fully en- 
dorse and sustain you in all the facts which you have presented ; 
they transpired as you represent them. The President stated to 
me what you say he did, and left no doubt On my mind that Illinois 
was entitled to the money she claimed, according to his view of the 
law relating thereto. 

8 



5 8 Settlement of Accounts. 

I will also state that after my interview with the President, I had 
another with the Hon. John P. Usher, Secretary of the Interior, who 
treated me with great courtesy and kindness, which terminated by 
his leaving the impression on my mind that his view of the laws 
upon which we based the claim of Illinois were the same as those 
which the President had expressed to me." 

Yours, very truly, P. B. FOUKE. 

Hon. I. N. Morris. 

Note. — One of the statements to be found in my original report, 
which is so emphatically endorsed by Col. Fouke in the preceding 
letter, is as follows : 

" He (meaning the President) also said to Col. Fouke that he 
had talked with Mr. Usher, his Secretary of the Interior, on the 
subject, and that his Secretary entertained precisely the same views 
of the laws upon which the claim of the State is based as he himself 
did ; that he, the Secretary, had so said to him. ' ' 

I. N. MORRIS. 

Willard's Hotel, July 29, 1865. 
Hon. I. N. Morris : 

Dear Sir : — At your request I have looked over my note to you 
dated February 20, 1864, in regard to the Two Per Cent. Fund, 
and find that I can add but little to what is there stated. I can only 
repeat that Mr. Lincoln expressly stated that the law was with the 
State, that the claim ought to be paid, and would be paid, but it 
was bad taste on the part of the State to urge the payment of the 
claim during the existence of the war, and the pressing demands 
upon the treasury. I th^n said to him, that Illinois would do noth- 
ing to retard or interfere with a vigorous prosecution of the war. 

She had given every evidence of devotion to the Union ; that 
she had a patriotic Governor, whose whole heart was devoted to the 
Union cause, and that the people of Illinois were giving him a vig- 
orous support in his manly efforts to sustain the Government, and 
that it was not the money that the State demanded at that particu- 
lar time, but the State had the right to demand of the General 
Government a proper acknowledgement of the justice of the 
claim \ that done, the State would readily wait until after the 
war, or for that matter twenty years, rather than embarrass the 
National treasury. Mr. Lincoln said emphatically that he saw 
no objection to the acknowledgement of the claim with that under- 
standing, and seemed pleased with the proposition, and also re- 
quested me to again see the Secretary of the Interior, which I did, 
and although his important duties were at the time sorely pressing 
him, he gave me a very kind and attentive interview ; he said he 
was afraid that if the State pressed a settlement under the existing 
circumstances he would not be able to do the subject justice ; I then 



Settlement of A c counts. 5 9 

repeated the conversation I had with the President, and his request 
that I should make the proposition to the Secretary of the Interior. 
The Secretary expressed his gratification at the proposition, and 
spoke handsomely of the patriotism of Illinois. 

I do not pretend to quote here the precise language used by the 
different parties in all particulars, but I cannot be mistaken as to 
the substance, for in good truth, when I left the Secretary that day, 
I supposed you and he could speedily fix the terms of settlement, 
deferring the payment to a more convenient period for the Gene- 
ral Government. It is sometime since that conversation took place 
but I faithfully repeated the whole of it to you on the same day 
that it occurred, and I refer to your recollection of the event for 
the correctness of this statement. 

Your friend, sincerely, 

P. B. FOUKE. 



United States of America, \ 
District of Columbia, j ' 



Philip B. Fouke, being first duly sworn, deposeth and saith that 
the matters and things in his letters to the Hon. I. N. Morris, agent 
and attorney for the State of Illinois, in the matter of the Two Per 
Cent. Fund of said State, the first dated Washington City, Febru- 
ary 20, 1864, and published on page 128 of said Morris' report, and 
the other Willard's Hotel, Washington City, D. C, July 29, 1865, 
are true in substance and matter of fact, as therein stated, and 
further deponent saith not. 

Said letters are hereto attached, and made a part hereof. 

P. B. FOUKE. 

Subscribed and sworn to before me this 24th day of August, A. 
D. 1865. In testimony whereof I have hereunto set my hand and 
seal. EDGAR H. BATES, Jr., 

Justice of the Peace. 

Note — At the time of the conversations referred to, Judge Nor- 
ton and Col. Fouke were members of Congress. 

Springfield, III., May, nth 1865. 
Hon. I. N. Morris: 

Dear Sir: — In answer to your verbal inquiry, addressed to me 
this day, I beg to state that I distinctly remember an interview be- 
tween the late President, His Excellency, Abraham Lincoln, and 
Governor Richard Yates, then Governor of this State, and was 
present at said interview in the capacity of Assistant Secretary to 
the Governor. The interview took place at the White House, 
Washington, in the latter part of March, 1863. Governor Yates 
asked the President if he would be kind enough to hear you read 
an argument you had prepared, showing the justice of the claim of 



6o Settlement of Accounts. 

the State of Illinois to the so-called Two Per Cent. Fund, and 
which you had that day read to the Governor in my presence. The 
President replied that there was no necessity for your reading the 
paper to him ; that he was then very busy, and that he had also 
some time since gone over a summary of the legal points in the 
case with you, and had made up his mind upon the whole matter. 
The President also continued, as nearly as I can remember : 'Gov- 
ernor Yates, I have made up my mind fully as to the justice 
and equity of the claim. The only difficulty I see in the case is as 
to the propriety of pressing it at this particular time. I think it is 
inopportune to do so when the government is so pressed for means 
to carry on the war. ' 

This was the substance of the President's reply, who, during the 
conversation, did not once question the validity of the claim on 
the part of the State, and only treated its payment as a question of 
time. I am, dear sir, most respectfully yours, 

JOS. K. C. FORREST. 



HON. THOMAS A. HENDRICKS' OPINION. 

In answer to the following inquiry: "I have to ask of you 
whether you will be prepared, on the proper application being 
made, to pay over to the State of Illinois the aggregate amount of 
said two per cent., when the same shall be ascertained, as required 
by 'an Act to settle certain accounts between the United States and 
the State of Mississippi, and other States,' approved March 3d, 
1857, and the Enabling Act for said State," Mr. Hendricks said: 

" In reply I have to state that the amount you refer to shall be 
adjusted as soon as the great pressure of business will admit of it, 
and I am not aware of any reason for with-holding payment of the 
amount to which the State may be entitled, when the same shall have 
been ascertained. THOMAS A. HENDRICKS, 

Commissioner. 



EXTRACTS FROM OPINIONS EXPRESSED BY JUDGES 
TREAT, DAVIS, DRUMMOND, AND OTHERS. 

"It seems clear to my mind that the act of March 3d, 1857, is 
broad enough to require an adjustment of the claim without any 
further legislation by Congress." S. H. TREAT, 

Judge Southern Disirict Illinois. 
"The claim against the general government (from the examina- 
tion I have given it) is valid. If so, there can be no just reason 
why the State should not receive it." DAVID DAVIS, 

Judge U. S. Supreme Court. 



Settlement of Accounts. 61 

" As I understand, the law of 1857 was first introduced with par- 
ticular reference to the State of Mississippi. Afterward the second 
section was added by way of amendment, and the title of the bill 
changed so as to make the law general. It certainly includes 
within its scope and meaning the State of Illinois, and it was in- 
tended to include it, because Illinois was in the same legal condi- 
tion as Alabama and Mississippi in respect to the subject matter of 
the bill, and a discrimination against Illinois would have been un- 
just. Then the language of the law is imperative to the Commis- 
sioner: l Shall state an account, and shall allow and pay * * 

* * such amount as shall be found due. 

In the limited time I have had to look into the question, I have 
considered some of the objections made to the claim, and certainly 
they do not appear to have much force." 

THOMAS DRUMMOND, 
Judge Northern District Illinois. 

" After a careful examination of your report to his excellency, 
Gov. Yates, in reference to the Two Per Cent. Fund arising on the 
sale of public lands, claimed to be due the State, I fully concur in 
your reasoning and conclusions. I regard the claim as just and 
have no doubt it should be paid without further legislation. The 
act of the 3d of March, 1857, it seems to me, is ample in its pro- 
visions, not only authorizing but requiring its payment." 

P. H. WALKER, 
Supreme Judge, Illinois. 

" I fully concur in the above opinion expressed by Mr. Justice 
Walker." J. D. CATON, Chief Justice. 



CORRESPONDENCE BETWEEN THE FIRST COMPTROL- 
LER AND THE LAND COMMISSIONER. 

Treasury Department, ) 
Comptroller's Office, April 7, 1868. j 

Sir — I return herewith General Land Office Report No. 17,984 
on the Two Per Cent. Fund claimed by the State of Illinois. 

By the act for the admission of Illinois into the Union the two 
per cent, in question was reserved "to be disbursed under the direc- 
tion of Congress in making roads leading to the State." 

In the account or report now returnad, the Two Per Cent. Fund 
is'stated as chargeable in this connection, on account of the con- 
struction of the Cumberland road in the State of Illinois, which I 
think is an error. 



6 2 Settlement of A ccounts. 

Be pleased to re-state the account so as to show with what sum 
the fund is chargeable for disbursements under the direction of 
Congress in making roads leading "to the State," omitting in the 
statement the sums expended within the State, which are not, in 
my opinion, chargeable to this fund. 

Your early compliance with this request is desired. 

I am, respectfully, your obedient servant, 

R. W. TAYLER, 

Comptroller. 
Hon. J. S. Wilson, 

Commissioner Gen 1 1 Land Office, Washington: 

Department of the Interior, ) 
General Land Office, April 9, 1868. } 
Hon. O. H. Browning, 

Secretary of the Interior : 

Sir: — I have the honor to lay before you a letter dated April 7, 
1868, from the First Comptroller of the Treasury, returning our 
report of 17th March, 1864, No. 17,984, on the Illinois Two Per 
Cent. Fund, and asking a re-statement on the basis set forth in his 
communication. 

This account was stated by my predecessor in accordance with 
the opinion of the Secretary, as expressed in his letter of 31st 
August, 1863; was subsequently submitted to and approved by the 
Department, and duly transmitted to the First Comptroller of the 
Treasury for final adjustment. 

Subsequently, in compliance with the Secretary's request, we 
asked for the return of the account. It was duly received and sub- 
mitted to the Secretary 4th September, 1865. 

On the 24th October, 1865, the Department expressed its decis- 
ion affirming the action of this office and directed the return of the 
account to the First Comptroller, to whom it was returned 27th 
October, 1865, with a copy of the Secretary's decision. 

It is now, after the lapse of four years, returned for re-statement. 

In the Commissioner's opinion, the power of this office by those 
acts have been exhausted in the premises, and that according to the 
principle laid down in the decision of the Supreme Court of the 
United States in the case of the United States vs. Stone, 2d Wal- 
lace, page 535, declaring that "one officer of the Land Office is 
not competent to cancel or annul the act of his predecessor," it is 
not now competent for the Commissioner to make the re-statement 
proposed by the Comptroller. 

It may further be observed that the law has marked out with pre- 
cision the line of the Commissioner's duty in the matter by direct- 
ing, in the 9th section of the act of 25th April, 181 2, vol. 2, page 
717, that he "shall have power to audit and settle all public accounts 
relative to the public lands ; provided, that it shall be the duty of the 



Settlement of A c counts. 6 3 

said Commissioner, upon the settlement of any such account, to certify 
the balance and transmit the account, with the vouchers and certifi- 
cate, to the Comptroller of the Treasury for his examination and de- 
cision thereof." 

The law thus confers authority, not on the Comptroller "to audit," 
but exclusively upon the Commissioner. That duty has been com- 
pletely discharged and the requirements of the statute fully met by 
certifying the result to the Comptroller of the Treasury, whose 
function it now is to revise, pass upon the same, admit the balance or 
change it, according to his judgment under the statute, the law mak- 
ing each office independent of the other as a part of the Treasury 
system. 

I would therefore recommend that the letter and statement made 
as aforesaid by my predecessor, more than four years ago, to the 
Comptroller, be returned, declining compliance, yet thus enabling 
that functionary to carry out his own ruling in the matter, under 
his own sense of duty and official responsibilities. 

I am, sir, very respectfully, 

JOS. S. WILSON, 

Commissioner. 

A reply was made by Mr. Tayler to Mr. Wilson, which I regret 
to say I have no copy of. I will add that the Commissioner is in 
error when he states that when the account of Illinois was returned 
to the Interior Department the former decision of Judge Otto was 
affirmed. I. N. MORRIS. 



41ST Congress ) HOUSE 

3d Session, J j No. 40. 



zr,:e:fo:r,t 

OF THE 

COMMITTEE ON THE JUDICIARY, 



TWO PER CENT. CLAIM OF ILLINOIS, INDIANA AND OHIO. 



February 27, 187 1. — Ordered to be printed and recommitted to the Committee 

on the Judiciary. 



Mr. Kerr, from the Committee on the Judiciary, made the fol- 
lowing report to the House, March 2d, 1871 : 

The Committtee on the Judiciary, to whom was referred House res- 
olution No. 379 to construe a statute therein named, having had 
the same under consideration, beg leave to submit the following re- 
port : 

The object of the resolution is to construe the second section of 
the act of March 3, 1857, entitled "An act to settle certain accounts 
between the United States and the State of Mississippi and other 
States." For the better understanding of the whole subject, the 
entire text of the act is here set out : 

That the Commissioner of the General Land Office be, and he is hereby, re- 
quired to state an account between the United States and the State of Missis- 
sippi, for the purpose of ascertaining what sum or sums of money are due to said 
State, heretofore unsettled, on account of the public lands in said State, and up- 
on the same principles of allowance and settlements prescribed in the "Act to 
settle certain accounts between the United States and the State of Alabama," ap- 
proved the 2d of March, eighteen hundred and fifty -five ; and that he be required 
to include in said account the several reservations under the various treaties with 
the Chickasaw and Choctaw Indians within the limits of Mississippi, and allow 
and pay to the said State five percentum thereon, as in case of other sales, esti- 
mating the lands at the value of one dollar and twenty-five cents per acre. 

Sec 2. And be it further enacted, That the said Commissioner shall also state 
an account between the United States and each of the other States upon the 
same principles, and shall allow and pay to each State such amount as shall thus 
be found due, estimating all lands and permanent reservations at one dollar and 
twenty-five cents per acre. 



Settlement of Accounts. 65 

To indicate the "principles" referred to in the foregoing act the 
text of the act of March 2, 1855, "to settle certain accounts be- 
tween the United States and the State of Alabama," is here also 
fully embodied : 

That the Commissioner of the General Land Office be, and he is hereby, re- 
quired to state an account between the United States and the State of Alabama, 
for the purpose of ascertaining what sum or sums of money are due to said State, 
heretofore unsettled, under the sixth section of the act of March second, eigh- 
teen hundred and nineteen, for the admission of Alabama into the Union ; and 
that he be required to include in said account the several reservations under the 
various treaties with the Chickasaw, Choctaw and Creek Indians within the 
limits of Alabama, and allow and pay to the said State five per centum thereon, 
as in case of other sales. 

The policy of the Federal government toward the States out of 
which these claims arose was adopted prior to 1802. It was based 
upon the agreement of all new States, at the time of admission into 
the Union, that they would waive and not exercise, for the period 
of five years after entry, their right to tax all lands within their 
respective limits purchased of the United States. This condition 
was imposed by the United States in aid of immigration and settle- 
ment, and was assented to by the States on condition that five per 
cent, of the proceeds of the sales of all public lands within their 
respective limits should be allowed and paid to the States respec- 
tively, or expended by Congress for their use and benefit. These 
agreements and conditions were not in all cases precisely the same ; 
but their differences were not such as to impair or modify the gen- 
eral policy in which they had their origin. All the States embraced 
within that policy have, without a single exception, entirely re- 
frained from taxing lands purchased of the United States until the 
period of five years had elapsed from the date of purchase. They 
have thus kept faith with the Federal government, and thereby, 
whatever rights accrued to them, respectively, by reason of this 
policy, became vested, and, so far as they have not heretofore been, 
they ought now to be observed and protected. These rights have 
been in good faith fully recognized and awarded by the Federal 
government in behalf of the States of Louisiana, Arkansas, Michi- 
gan, Wisconsin, Kansas, Iowa, Minnesota, Florida, Alabama, Mis- 
sissippi, Missouri, Oregon, Nebraska and Nevada, and in one form 
or another, as the result of arrangements satisfactory to both parties, 
each of them has had the full benefit of the reserved five per 
centum. 

In the early history of the legislation on this subject it will be 
found that the mode of payment, investment, or disposition of this 
fund, was determined by laws applying to the several States separ- 
ately. But, to avoid the frequently recurring necessity for such 
special enactments, the second section of the act of March 3, 1857, 
was passed. That section made it the duty of the Commissioner of 

9 



66 Settlement of Accounts. 

the General Land Office to ' 'state an account between the United 
States and each of the other States, upon the same principles, and to 
allow and pay to each State such amount as shall thus be found due, 
estimating all lands and permanent reservations at $i 25 per acre" 
This language is clear and specific, and its intent and purpose are 
too obvious to need argument. The "other States" are required to 
be settled with on the liberal and just principles on which the set- 
tlements were made with the States of Mississippi and Alabama. 
When settlements are to be made, it is declared to be the duty of 
the Department to allow and pay the amount so found to be due. 
There is nothing in this section which prescribes one rule for one 
State and a different rule for another in the adjustment of these 
accounts. No words in the act indicate any purpose or intent to 
charge any State with any set-off. No exception or restriction is 
made against any States. 

The States of Illinois, Indiana and Ohio have severally enjoyed, 
under different laws, the benefit of the fund in question to the ex- 
tent of three per centum. But the other two per centum has been 
withheld. Should it be allowed and paid? The object of the joint 
resolution under consideration is to give an affirmative answer to 
this inquiry by construction of the act of March 3, 1857. 

Ohio was the first State admitted, and from time to time there 
was paid to it three-fifths of this fund, to be expended, under the di- 
rection of its legislature, in making roads within the State. But the 
other two-fifths the Federal government reserved the right to ex- 
pend in making public roads, leading from the navigable waters 
emptying into the Atlantic, to the State and through the same. 
(See acts of April 30, 1802, and March 3, 1803, relative to ad- 
mission of Ohio.) 

The State of Illinois, under like enactments, received three-fifths 
of this fund, to be expended in the advancement of its educational 
interest, under the direction of its legislature. The other two-fifths 
of the fund were to be expended in making roads leading to the 
State. (See act of April 18, 1818, relative to admission of Illinois, 
and Brightley's Digest, p. 310, conditions 3 and 4 of section 3.) 

The State of Indiana, under similar laws, enjoyed the use of 
three-fifths of the fund in making roads and canals therein. The 
other two-fifths were to be expended by Congress in the construc- 
tion of a road or roads leading to that State. (See act of April 11, 
1 018, and Brightley's Digest, p. 416, and 3 Stat, at Large, p. 424.) 

The United States never discharged theft obligations, or per- 
formed their trust towards these States in the expenditure of the 
two-fifths of this fund, unless, in the judgment of Congress, the fu- 
tile attempt to lay out and construct a road, called in the laws on 
the subject, the "Cumberland road," constitutes a performance of 
those duties. That road, as originally projected and subsequently 
extended, was intended to connect by a great national highway the 



Settlement of Accounts. 67 

East with the West, running through the capitals of Ohio, Indiana 
and Illinois, and terminating at Jefferson City, in the State of Mis- 
souri. It will scarcely be contended by any person that the design 
of Congress in this respect was ever executed. It was not carried 
out to any such extent, or in any such manner, as even to consti- 
tute any just, equitable or legal claim against those States. It can- 
not be said that it was a compliance in spirit or letter with the 
terms upon which the two -fifths were retained. 

These views are very greatly fortified by the fact that, when the 
legislation of 1857 was enacted, that "Cumberland road" had been 
for long years abandoned ; had been surrendered to the States 
through which it was projected without conditions ; had ceased to 
be Federal property or under Federal control ; had passed out of 
popular memory, and was remembered only in history. It cannot, 
without a manifest stretch of imagination, be claimed to have been 
in the legislative mind when the act of 1857 was passed. The road 
was not referred to in any of those enactments. Its existence was 
not made the basis of any charges against those States. Neither 
was any condition imposed upon, or any charge made against any 
of them when that road was surrendered to them, so far as it was 
within their respective limits. Besides, the parts of that road 
which were within the States of Maryland, Virginia and Pennsyl- 
vania were given to those States respectively, without any charge 
or claim, or expectation of repayment in any way whatever, directly 
or indirectly. 

It is further worthy of remark that, by reason of intrinsic difficul- 
ties in the subject, it would be impossible to make an account 
against any of those States for money expended in the partial con- 
struction of that road, except upon the most fanciful, if not absurd, 
principles of accounting. But why make any such claim against 
those States when none such was ever made, or ever will be made, 
against any other States? Why deny to these States equal consid- 
eration or equity, or even liberality, with any other States ? 

It is proper further to observe that the privilege of taxing the 
lands of their citizens for the period of five years after their 
purchase by the citizens from the Federal government, which was 
so surrendered by the States, would have realized to them respec- 
tively, if it had not been so given up, very much more than the 
amount which they now claim. In other words, it was the surren- 
der of a valuable right, the giving of a full equivalent by the States 
for the promised five per centum. So far as that fund has not been 
accounted for to these States, it remains in the custody of the 
United States as a sacred trust; and, in our judgment, its adjust- 
ment and payment ought not to be longer delayed. We might 
here refer at length to the numerous decisions in the past by com- 
mittees of either House of Congress, by Commissioners of the Gen- 
eral Land Office, and by competent and distinguished officials, 



68 Settlement of Accounts. 

maintaining the validity of the claims of these States. But it is 
deemed proper to let the subject abide upon its own merits in the 
judgment of the House. 

The committee, in conclusion, recommend the passage of the fol- 
lowing joint resolution as a substitute for the one referred to them : 

JOINT RESOLUTION DECLARING THE TRUE CONSTRUCTION OF A STATUTE. 

Be it resolved by the Senate and House of Representatives of the United States 
of America in Congress assembled, That the true intent and meaning of the sec- 
ond section of the act approved March 3, eighteen hundred and fifty-seven; en- 
titled "An act to settle certain accounts between the United States and the State 
of Mississippi and other States," is that all the other States, to-wit, Ohio, Indiana 
and Illinois, which have not received the full amount of their five per centum of 
the net proceeds of the sale of public lands lying within their respective limits, 
as mentioned in their several Enabling Acts, in money, shall have their accounts 
stated, both on the public lands and reservations, and such cash balance as has 
not been paid to said States allowed and paid. 



JUDGE CURTIS'S OPINION, 

ON THE 

CONSTRUCTION OF THE ACT APPROVED MARCH 3 d, 
1857, TO SETTLE CERTAIN ACCOUNTS BETWEEN THE 
UNITED STATES AND THE STATE OF MISSISSIPPI AND 
OTHER STATES. 

I have been requested to examine the claim of the State of Illi- 
nois to be paid by the United States two per cent, of what has been 
received by the United States from the sales of public lands within 
that State made after its admission to the Union. 

This claim grows out of the sixth section of the act of April 18, 
1 81 8, for the admission of that State to the Union on an equal 
footing with the original States. That section is as follows : 

That five per cent, of the net proceeds of the lands lying within such State, 
and which shall be sold by Congress from and after the first day of January, one 
thousand eight hundred and nineteen, after deducting all expenses incident to 
the same, shall be reserved for the purposes following, viz : two-fifths to be dis- 
bursed, under the direction of Congress, in making roads leading to the State, 
the residue to be appropriated by the legislature of the State for the encourage- 
ment of learning, of which one-sixth part shall be exclusively, bestowed on a 
college or university. 

It is stated as a matter of fact that a system of internal improve- 
ments was begun under the authority of Congress, and large expen- 
ditures were made thereon in the States of Ohio and Indiana, which 
resulted in the creation of roads in those States ; and other large 
expenditures were made for similar purposes within the State of Illi- 
nois, which did not result in the completion of any useful or prac- 
ticable roads ; and that, while matters were in this condition, Con- 
gress finally abandoned its original intention and policy of creating 
a national road from Wheeling, on the Ohio River, to the Missis- 
sippi River, and all work thereon was ended, and those parts of the 
road which had been built and made practicable in Ohio and Indi- 
ana; that is to say, the roads contemplated by the act of 1818, to 
be built out of the reserved two per cent., "leading to the State of 
Illinois," were, by the United States, granted to the States in 
which they lay, upon new contracts and conditions, by which those 



7<d Settlement of Accounts. 

States became the owners thereof, and by which those States were 
enabled to, and did in point of fact, impose a toll for the use of the 
same, as being the absolute property of each of them. 

Before considering what is the true meaning and eifect of the sub- 
sequent legislation of Congress in 1855 and 1857, I think it most 
material to observe that when these last mentioned acts were passed 
the United States had clearly failed to keep and perform the com- 
pact contained in the sixth section of the act of 181 8, admitting 
the State of Illinois to the Union. 

It must be borne in mind that the agreement of the United States 
to disburse two per cent, of receipts from the sales of public lands 
within the State of Illinois "in making roads leading to the State," 
had a sufficient and corresponding consideration in the stipulation 
of the State not to tax the public lands in the hands of purchasers 
or patentees until after the lapse of certain fixed periods. That this 
agreement to reserve two per cent, of the sales of public lands, and 
expend what was thus reserved in the public works described, had 
all the elements of a contract : that it created a trust when the de- 
signated moneys were received ; and that before the acts in ques- 
tion were passed, the United States had not merely failed to per- 
form that contract and execute that trust, but that Congress had, 
before the passage of tha act of 1857, fixed the fact finally and ir- 
revocably that the contract would not be performed and the trust 
would not be executed. 

It is true that what had been done upon the roads in Ohio and 
Indiana might possibly have been taken as a compliance with the 
contract and execution of the trust, if Congress had not by its acts 
rendered it impossible to consider the construction of these roads 
in Ohio and Indiana an execution of the trust or a performance of 
the contract. 

Having caused them to be built, Congress might have perma- 
nently dedicated them to a free public use, and if they really were 
such roads leading to the State of Illinois as were contemplated by 
the act of 18 18, the United States might have rested in the conclu- 
sion that they had thus performed this contract, and executed their 
trust. 

But it is also true, that Congress might, from some change in its 
policy, make such an appropriation of these roads as to be wholly 
inconsistent with their creation being a compliance with the con- 
tract and an execution of the trust. 

After a careful consideration of the action of Congress upon the 
subject of this road in Ohio and Indiana, the only satisfactory con- 
clusion I can come to is, that when Congress transferred the road 
to the States of Ohio and Indiana, with power to levy a toll there- 
on, subject only to certain restrictions in favor of the United States, 
and abandoned the further prosecution of the work, it did thereby 
abandon the performance of the contract, and did finally declare 



Settleme?it of Accounts \ 7 1 

that the trust to expend two per cent, of the receipts from sales of 
public lands in the State of Illinois, for the purposes and in compli- 
ance with the contract designated in the act of admission of the 
State, would not be executed. 

And this I believe to have been the actual state and condition of 
the relative rights and obligations of the United States, and of the 
State of Illinois, at the time of the further legislation now in ques- 
tion, in 1857. 

That state and condition of the relative rights and obligations of 
the State and the United States was this : The United States for a 
valuable and adequate consideration, had agreed to expend two 
per cent, of the receipts of the sales of public lands within the State 
of Illinois, "in making roads leading to the State." 

The United States had begun to execute the trust. It had built 
roads in Ohio and Indiana. But from a change in the public pol- 
icy of Congress, instead of allowing those roads, when built, to re- 
main free and open for public use, the United States transferred 
them to Ohio and Indiana, as the several property of each of those 
States, with power to impose tolls for their use. 

I cannot think this was a fair and full compliance, or, indeed, 
any compliance at all, with the contract and the trust under which 
the United States received these moneys. Under the contract, cer- 
tain moneys, in which the State of Illinois must be deemed to have 
had an interest, were reserved to build roads leading to that State. 
Nothing is said, and certainly nothing can be implied, leading to 
the conclusion that, when built, they could not be used freely and 
without charge. The United States reserve no right to themselves 
to impose a toll for the use of the roads so built out of the moneys 
which Illinois agrees, for a valuable consideration, should be appro- 
priated to build them. Still less do the United States reserve any 
right to convey the roads to Ohio and Indiana, and enable those 
States to control, manage, discontinue, and levy tolls on such 
roads. And when this was done, in my judgment, the United States 
abandoned the contract, and finally and decisively refused to exe- 
cute the trust. 

Such seems to me to have been the state of facts and the relations 
of the State of Illinois to the United States when the act of March 
3, 1857, "An act to settle certain accounts between the United 
States and the State of Mississippi and other States," was passed. 

The State of Illinois then had a just claim on the United States, 
capable of liquidation in the Land Office, founded on the fact that 
the United States had agreed, for an adequate and valuable consid- 
eration, to appropriate two per cent, of the receipts from the sale 
of public lands sold within the State, to make roads leading to the 
State, and had not performed this contract. 

Now, concerning the act of March 3, 1857, there are certain 
things indubitably true: 



72 Settlement of Accounts. 

First. That it relates to the state of the account between the 
United States and the several States, arising out of the sales of pub- 
lic lands within such several States. 

Second. That it assumes that this account arises out of the stipu- 
lations made by the United States in respect to the reservation of 
five per cent., for the benefit of such States, from the proceeds of 
the sales of public lands within such States. 

Third. That it commands the Commissioner of the General Land 
Office to state such an account. 

Thus far is clear. 

The doubts which arise are — 

First. Whether this legislatien had any other scope or effect than 
this : To direct the Commissioner in stating an account, to in- 
clude Indian and other reservations. 

Second. Whether the Commissioner, in stating the account re- 
quired by this law, should go into the inquiry how far the United 
States had executed its trust as respected the two per cent., by 
"making roads leading to the States," and should pass on that gen- 
eral question, and, in some way, arrive at its results. 

Upon the first of these questions I find myself unable to enter- 
tain any doubt. The act in question, by its first section, requires 
an account to be stated between the State of Mississippi and the 
United States, for the purpose of ascertaining what sum or sums of 
money are due to said State, heretofore unsettled, on account of the 
public lands in said State ; and it directs and requires that in 
stating that account the Commissioner of the General Land Office 
who is commanded to state the same, shall include certain described 
items. 

I am unable to perceive why the whole of this mandate of the leg- 
islature should not be obeyed. And, if the whole is to be obeyed, 
then there must be, first, an account stated of the sum or sums of 
money due to the State. Second. There must be included there- 
in the items designated. 

To state an account of the items specially required to be included 
therein, would not approach so near to compliance with the act as 
to state an account of the sums of money due to the State without 
including these special allowances The latter would obey the 
general order of Congress and disregard one of its details. The 
former would disregard the general order to state an account, 
and substitute in its place obedience to a special direction as to 
particular items to be included therein. 

It is every-day's practice for courts to order an account to be 
taken covering a particular subject matter, and to direct that certain 
items shall be included in the account. I never supposed any one 
could believe that such an order would be complied with by taking 
an account of the items specially directed to be included in the ac- 
count. 



Settlement of Accounts, 73 

If the sole object of Congress had been to allow to the State of 
Mississippi and each of the other States two per cent, on a fixed 
valuation of one dollar and a quarter on the lands reserved from 
sale, why was not this, and this alone, said by Congress ? Why 
should an account have been directed of the sum or sums of money 
due to the State on account, not of these reservations, but "of the 
public lands in the said State?" The question being whether the 
account is to be restricted to "reservations," or is to include all 
sales of public lands, how is it possible to escape from the express 
words of the act that the account is to be of what is due "on ac- 
count of the public lands in said State," and that the reservations 
are~to^be "included" as one of its items. 

If this is true as between the State of Mississippi and the United 
States, it is equally true as between the State of Illinois and the 
United States, by force of the second section of the act of March 
3, 1857, which applies "the same principles" to each of the other 
States. 

Upon the second of the questions, viz : Whether the Commis- 
sioner, in stating the account required by this law, should go into 
the inquiry how far the United States had executed its trust as re- 
spected the two per cent., by "making roads leading to the State," 
and should pass on that general question, and in some way arrive 
at its results, I am of opinion that the act in question neither re- 
quired nor allowed any such inquiry by the Commissioner. 

First. The act gives no directions to make such inquiry, or to in- 
clude in the account any such items. 

Second. The state of facts then existing afforded no foundation 
for any such inquiry, or any materials whereby the Commissioner 
of the General Land Office could state any account including such 
deductions. There were no accounts in his office or under his of- 
ficfal knowledge which would enable him to make such deductions 
as matters of account, and no charge had been made anywhere 
against this proposed account. 

Third. In point of fact, the United States, instead of complying 
with its promise to expend the money in building roads "to the 
State," had, long before the date of this law, wholly abandoned the 
execution of the trust, and had made such disposition of the pro- 
perty as was inconsistent with its performance. The assumption 
that this act of Congress requires the Commissioner to make allow- 
ances to the United States for expenditures by the United States 
in building roads, is an assumption that Congress meant to require 
allowances under a contract for what was not done in performance 
of that contract ; and this assumption is made without any expres- 
sion of the will of Congress to that effect. In my opinion, it is un- 
founded. 

10 



74 Settlement of Accounts. 

Congress has required an account to be stated respecting a partic- 
ular subject-matter. It gives two directions as to the mode of sta- 
ting that account : 

i. "What sum or sums of money are due to the said State hereto- 
fore unsettled on account of the public lands of the said State?" 

2. The other is a direction to "include in said account" certain 
reservations. 

To suppose that "heretofore unsettled" remitted the State to the 
Commissioner of the General Land Office, to inquire how much the 
United States under its old and abandoned system of public im- 
provements, had spent in "making roads to the State," seems to 
me wholly inadmissible. And there is one among many reasons 
why it is not admissible which I may properly state. 

The act of March 2, 1855, had reference to the State of Alabama. 
The United States had made no expenditures of this character which 
could be deducted from the account under this act, and I under- 
stand none were deducted. 

The first section of the act of March 3, 1857, respects the State of 
Mississippi. The United States had made no expenditures of this 
character which could be deducted from the account under this act 
and none were deducted. Now, the second section of this act of 
March 3, 1857, which is now in question, requires the Commission- 
er to state an account between the United States and each of the 
other States "upon the same principles." How, then, can the 
Commissioner state the account upon any different principles? 
How can he undertake to say, I insist the United States owes you 
nothing, not because this account of the title of the State to five per 
cent, of the sales of the public lands has ever been settled, but be- 
cause I find by inquiry, out of my own department, that the United 
States undertook to perform the trust for which they reserved this 
money, and before they voluntarily abandoned its performance, and 
made what they had done useless to the State of Illinois, they had 
spent all the money reserved? 

Who authorized the Commissioner to enter into this inquiry ? In 
my judgment, his jurisdiction to make it was as unfounded as the 
conclusion at which he arrived. That conclusion seems to have 
been that because the United States spent money to make roads 
within the state of Illinois, which were abandoned without comple- 
tion, and are said to have been worthless, their cost should be al- 
lowed as coming under the contract to expend the two per cent, 
"in making roads leading to the State." 

I am unable to agree to this conclusion. 

In my opinion the act of March 3, 1857, contains a direction to 
the Commissioner of the General Land Office to state an account, 
in which he is to credit the State of Illinois with five per cent, of 
the sales of public lands made within that State, and is to charge 



Settlement of Accounts. 75 

that State with the moneys which have been paid by the United 
States toward a settlement of that account. And under that act, in 
my opinion, he has no authority to include in that account any 
other item, except what he is expressly directed to include, viz : the 
reservations at their fixed valuation. B. R. CURTIS. 



BRIEF VIEWS BY WM. M. EVARTS. 



BRIEF ON THE QUESTION OF THE ACCOUNT UNDER 
THE ACT FOR REFUNDING THE "TWO PER CENT." 
TO THE STATE OF ILLINOIS. 

Although this subject has been discussed at considerable length, 
and on various occasions, and the briefs of Mr. Cushing and Mr. 
Johnson, with my own extended oral argument, have placed the 
topics involved very fully before the Attorney General, I do not 
think it unsuitable to present a few principal points in the argu- 
ment, in a brief form, as controlling the interpretation of the act. 

I. Upon the act of Congress providing for this account with the 
State of Illinois, in respect of the sales of the public lands in that 
State, and the act providing for such an account with the State of 
Alabama, to which the first-mentioned act refers as a precedent 
and guide, there is no apparent or natural implication of any other 
purpose, in the account proposed and required by the act, than the 
ascertainment of what amount of the net five per cent, of sales 
(and reservations computed as sale) had not been already paid to 
the State of Illinois, and the payment of the same. 

If we seek to extract from the two acts, and separately express, 
the legislative provision for Illinois, it would read as follows . 

That the Commissioner of the General Land Office be, and he is hereby, re- * 
quired to state an account between the United States and the State of Illinois, 
for the purpose of ascertaining what sum or sums of money are due to said 
State, heretofore unsettled, on account of the public lands in said State, and that 
he be required to include in said account all permanent reservations, (at the 
value of one dollar and twenty-five cents per acre,) and to allow and pay to 
said State five per centum thereon, as is to be allowed and paid in case of the 
lands sold; and that he allow and pay to said State such amount as shall thus be 
found due. 

Confessedly, then, whoever, in the supposed interest or purpose 
of the United States, undertakes to impede or defeat this simple 
yet complete direction of Congress to an executive officer, for the 
statement and payment of an account of the unsettled net five per 
centum of sales of the public lands in the State^of Illinois must find 



Settlement of Accounts. 77 

his warrant for such impediment and defeat elsewhere than in this 
act of Congress. 

But as Congress at the time of passing this act was wholly master 
of the subject, and competent, presently, wholly to comprehend 
and provide for the end proposed, by and in the act itself, the nec- 
essary construction of the act, according to its own terms and pur- 
pose, can be controlled only by its own acceptance or adoption of 
previous legislation as a continuing part of the legislative disposi- 
tion of the subject effected by the same act. 

So far from the fact that under previous laws of Congress the "ac- 
count" in question would be stated differently from what the new 
act (in the construction claimed for it by the State of Illinois) re- 
quires, being an argument that the new enactment is to have only 
the effect of the old, the logical and sensible conclusion is the op- 
posite ; new laws are passed to introduce and ordain new rules, 
and to govern, not be governed by, preceding rules. » 

In other words, previous inconsistent legislation is an argument 
for, not against, imputing new purposes and new efficacy to the 
later enactments. 

Now, as the previous legislation directed the payment to the State 
of Illinois of but three per cent, of the net proceeds, &c, and re- 
tained for administration the two per cent., and as the new act was 
obtained by the efforts of, and for the advantage of, the State of Il- 
linois, it is difficult to find any other substantial or operative effect 
proposed or accomplished by this new act than the effect claimed 
in behalf of the State of Illinois, to-wit, that the two per cent, 
.should be computed and paid to the State, and no longer remain 
subject to the previous legislation, which might apply it otherwise. 

No intelligent purpose on the part of Illinois in asking, or of 
Congress in passing this act, can be suggested, but this very efficacy 
now asked for it. 

To satisfy it by its effect upon the few thousand dollars of per 
centage on reservations is wholly inadmissible. 

To thwart it by making its direction of payment of the Two Per 
Cent. Fund to Illinois subject to, and not in place of, other dispo- 
sitions of it, which would absorb it, is to stultify the act. 

II. The act, however, making this provision in favor of the State 
of Illinois, contains a further assurance of certainty in its purpose 
of requiring the payment to the State of the entire net Two Per 
Cent, Fund, in place of its administration otherwise by Congress 
in two particulars : 

1. By prescribing the settlement with Illinois to be "upon the 
same principles and allowance" as are prescribed in the "act to set- 
tle certain accounts between the United States and the State of Ala- 
bama," and "upon the same principles" as in the act itself is pre- 
scribed for settlement of account with the State of Mississippi. 



7 8 Settlem ent of A c counts. 

2. By, in terms, putting the required payment on account of the 
"reservations" at five per cent, and on the basis that that is the 
measure of the payment on account of lands actually sold. 

The effect of these precise and unequivocal measures of the pay- 
ment to Illinois, by a reference to an indisputable standard, is to 
exclude every possible or argumentative ambiguity or alternative of 
meaning. 

It is as if, in a survey, in a deed of lands, when the metes and 
bounds, or courses and distances, are exposed to a disputatious con- 
struction as to the quantity of land they will include, the uncer- 
tainty is removed by an added statement, which gives the quantity 
to result from the survey, as the same has been conveyed to another 
grantee, whose land is indubitably ascertained and in possession. 

III. The construction of this act, claimed on behalf of Illinois, to- 
wit, that it requires a computation of the unpaid amount of the five 
per cent, fund, and nothing more, and its payment, and nothing 
less, to the State of Illinois, finds strong (if unnecessary) confir- 
mation in the means and agency selected by the act for its ex- 
ecution. 

i . It devolves a purely ministerial duty upon a certain officer. 

2. It limits this duty to the statement of a named account, and 
enjoins the payment of the resulting amount. 

3. It assumes that the materials of this account exist, and are 
within the competency of computation by the selected agent for the 
execution of the act. 

4. It names the Commissioner of the Land Office for this minis- 
terial service, in whose official administration are found the mate- 
rials for ascertaining the products of the lands sold, and the meas- 
urement of the "reservations," and the expenses of the land service 
applicable to each, and nothing more. 

5. An exploration of the Treasury accounts shows that there is no 
such account as of the expenditure or administration of the Two 
Per Cent. Funds of Illinois on the books of the Treasury, nor any 
materials for the same. (See certificates of Comptroller and of Regis- 
ter of Treasury, p. 60, 1st paging, of Mr. Morris' book.) 

6. An exploration of the statutes relating to the "national road" 
and the appropriations therefor, all of which have been fully con- 
sidered in my oral argument before the Attorney General, shows 
that there is no possible statement of the administration of the Two 
Per Cent. Fund of Illinois, as a matter of computation or account, 
within the competency of any accounting officer. 

The exertion of legislative will that such an account should be 
taken is not only wanting, but affirmative, not to say arbitrary, 
Congressional action, to designate, and in effect to give birth to, 
the elements or materials for such an account, would be necessary. 



Settlement of A c counts. f 9 

IV. It follows, then, that all the suggestions that a distinction ex- 
ists between the case of Alabama and of Mississippi, as it lay before 
Congress for its action, and the case of Illinois and Missouri, as en- 
tertained and acted upon by Congress in the statutes under review, 
by reason of the administration of the Two Per Cent. Fund of the 
latter States having been entered upon by Congress, while no at- 
tempt toward the execution of the trust had been made in respect 
of the similar fund of Alabama and Mississippi, are considerations 
which belong to Congress in passing these laws, and not to a minis- 
terial or accounting officer in executing them. 

When Congress has prescribed the same rule for both situations, 
it is mere usurpation for the Executive to vary the execution of the 
common rule, because reasons may be surmised why Congress 
might have prescribed diverse rules for the two situations. 

V. But that Congress does not consider that there is a diversity 
of treatment, suitable for the circumstantial differences insisted 
upon, is shown by the terms of the acts in question, and not less by 
the subsequent concurrent (though unnecessary) legislation, in 1859, 
for Missouri. (See Missouri act, 11 Stat., p. 388. 

VI. The briefs of Mr. Cushing and Mr. Johnson, and my own 
oral argument, have fully presented the facts and reasons why the 
will of Congress as expressed in these statutes, upon the construc- 
tion claimed for them, is just, equitable and reasonable, as well as 
definitive and potential. The latter qualities are sufficient, but the 
corroboration, from the other traits which characterize this legisla- 
tion, of this construction, is neither obscure nor equivocal. 

VII. The result is— 

1. That the law prescribes the statement of an account which has 
for its subject the ascertainment of the unpaid amount of the five 
per cent, fund, the only parties to which are the United States and 
the State of Illinois, so far as the public lands of that State are con- 
cerned, and the payment to that State of such amount. 

2. The pretension that this account and this amount should be 
met by a countervailing set-off of the result of another account, 
concerning another subject, is wholly the creation of official solici- 
tude and ingenuity. It interposes a will and wisdom which are not 
only without support in the legislation of Congress, but are subver- 
sive of and contradictory to the expressed and complete legislative 
will and wisdom, found in the statutes, and supported by their 
reason. 

3. An explication of the considerations out of which this official 
solicitude and wisdom are supposed to be drawn, shows that the 
affirmative and original action of Congress alone could create or es- 
tablish the elements out of which any accountant or other ministe- 
rial officer could draw the statement of this independent, extrinsic, 
and contradictory set-off. 



So Settlement of Accounts. 

The question proposed for the opinion of the Attorney General 
should be answered in exclusion of any set-off or deduction from 
the amount resulting from the simple land account directed to be 
taken and paid, in and by the statutes under consideration. 

WM. M. EVARTS, 

Of Counsel. 



ARGUMENT OF GEN. GUSHING, 



CONSIDERATIONS TOUCHING THE RIGHT OF THE 
STATE OF ILLINOIS TO THE TWO PER CENT. ROAD 
FUND RESERVED BY THE UNITED STATES OUT OF 
THE PROCEEDS OF PUBLIC LANDS LYING WITHIN 
THAT STATE. 

This question has been most ably and exhaustively discussed, in 
various arguments, by the Hon. I. N. Morris, special agent and 
attorney of the State of Illinois. 

It has been argued, also, with convincing force and ample histor- 
ical and legal illustralion, by J. K. Herbert, Esq., one of the attor- 
neys for the State, and by the Hon. C. L. Higbee and the Hon. 
Gustavus Kcerner. 

Brief but explicit opinions in favor of the right of the State in 
the premises have been expressed, in writing, by many other emi- 
nent jurors familiar with federal legislation and jurisprudence, in- 
cluding members of Congress of the highest character, such as Sen- 
ators Trumbull, Hendricks and Yates, ancl Representatives E. B. 
Washburne and Farnsworth ; by judges of the standing of Mr. Jus- 
tice Davis, of the Supreme Court of the United States ; of Chief 
Justice Carter, of the Supreme Court of the District of Columbia ; 
District Judges S. H. Treat and Drummond ; State Judges Caton 
and Walker, to say nothing of the unmistakable opinion of the late 
lamented President of the United States. 

In presence of all this weight of authority, while it would be so 
presumptious in me to allow my mind to come to any other conclu- 
sion, it is almost equally presumptious to assume to be able to throw 
any additional light on the subject, even in the sense of the same 
conclusion. 

But all experience proves that when a particular question has 
been thus largely debated, and has exercised the intelligence of su- 
perior minds, it will have attained the best possible state in which 
to be taken up afresh, and regarded with distinctness and clearness 
of vision as from a guasi-)udicia\ standpoint.' 

It is in this condition of mind that my attention has been applied 
to the question, with the result now to be stated. 

ii 



8 2 Settlement of A c counts. 

I commence where, at the present stage of the debate, it seems 
most natural and convenient to do so, namely, with exhibition of 
the statutes on which the question arises ; and shall proceed from 
that point to make a critical examination and exposition of their 
apparent legal construction and import. 

By act of March 2, 1855, (U. S. Laws, vol. 10, p. 630,) Congress 
enacted as follows: 

AN ACT to settle certain accounts between the United States and the State of 

Alabama. 
Be it enacted by the Senate and House of Representatives of the United States 
of America, in Congress assembled, That the Commissioner of the General Land 
Office be, and he is hereby, required to state an account between the United 
States and the State of Alabama, for the purpose of ascertaining what sum or 
sums of money are due to said State, heretofore unsettled, under the sixth sec- 
tion of the act of March 2, 1819, for the admission of Alabama into the Union, 
and that he be required to include in said account the several reservations under 
the various treaties with the Chickasaw, Choctow and Creek Indians within the 
limits of Alabama, and allow and pay to the said State five per centum thereon, 
as in the case of other States. 

The clause of the sixth section of the act of March 2, 1819, for 
the admission of the State of Alabama into the Union, above refer- 
red to, is in the following words, (U. S. Laws, vol. 3, page 491 :) 

That five per cent, of the net proceeds of the lands lying within the said Tei"; 
ritory, and which shall be sold by Congress, from and after the first day of Sep- 
tember, in the year 1819, after deducting all expenses incident to the same, shall 
be reserved for making public roads, canals, and improving the navigation of 
rivers, of which three-fifths shall be applied to those objects within the said State, 
under the direction of the legislature thereof, and two-fifths to the making of a 
road or roads leading to the said State, under the direction of Congress. 

Let it be remembered that this concession to the State of Alaba- 
ma (and to the other States in the same circumstances) was made as 
in the nature of compensation, always more or less inadequate, for 
the exemption of the public lands lying within it from taxation by 
the State. 

Let it also be remembered that the idea of according to this State 
(and to the State of Mississippi) augmentation of the five percent. 
fund, by credit on sales of lands ceded by Indians within the same, 
was not a new one at this date, for it was enacted by the act of July 
4, 1836, (U. S. Laws, vol. 5, page 116) which, however continued 
the dedication of the five per cent, to the same uses as provided by 
the act of admission into the Union. 

But the dedication was revoked as to those two States by the act 
of September 4, 1841, which, instead of reserving the two per cent, 
fund for the construction of a road leading to Alabama or Missis- 
sippi, under the direction of Congress, relinquished it to them, to 
be expended on a railroad in Mississippi and on navigable water 
improvements in the State of Alabama. (U. S. Laws, vol. 5, p 
4570 



Settlement of Accounts. 83 

Here we discern proofs of a change of policy on the part of the 
Federal Government in the matter of internal improvements, both 
as to the means of transportation and as to the relation of those 
means to the respective States. 

Congress had, in fact, furnished positive indications of such change 
of policy from time to time anterior to the act of March 2, 1855, by 
omitting, in successive acts for the admission of States subsequent 
to that of Missouri, to reserve any two per cent, road fund in the 
hands of the Government. Thus in the act for the admission of 
Arkansas, of June 15, 1836 (U. S. Laws, vol, 5, p. 50;) that for the 
admission of Michigan, of June 23, 1836, (U. S. Laws, vol. 5, p 
59;) that for the admission of Iowa, of March 3, 1845, (U. S. Laws, 
vol. 5, p. 742;) that for the admission of Wisconsin, of August* 6, 
1846, (U. S. Laws. vol. 9, p. 53;) in all these cases the entire five 
per cent, fund was committed to the charge of the legislatures of 
the respective States. 

So it was in the case of one other State, admitted in the interval 
between the date of the act of March 2, 1855, anc ^ that °f tne act 
of March 3, 1857, hereafter cited, namely, the State of Minnesota 
admitted by act of February 26, 1857, (U. S. Laws, vol. 11. p 167) 
as also in the case of other States subsequently admitted, as, for in- 
stance, Kansas, by act of May 4, 1858, (U. S. Laws, vol. 11, p. 
269;) Oregon, by act of February 14, 1859, (U. S. Laws, vol. 11, 
p. 383;) Nevada, by act of March 21, 1864, (U. S. Laws, vol. 13, 
p. 30,) and Nebraska, by act of April 19, 1864, (U. S. Laws, vol 13, 

P- 47-) 

For the same reasons which rendered it expedient or just to re- 
linquish the two-fifths to all these States, it was unjust or inexpedi- 
ent to withhold it from other States. 

We do not need to look into debates or reports of Congress in 
order to understand the legislative theory of these acts. That is 
obvious on their front. It was, in substance, the declaration of 
Congress abandoning its policy of establishing a trust of three 
per cent, of the proceeds of public lands for the construction 
of public roads and canals and improving the navigation 
of rivers within each new State, or for other special objects, 
and of two per cent, for the making of a road or roads 
leading to such State. It was the recognition of a change of poli- 
cy in this respect, which change had long existed in fact, but now 
was coming to be announced in solemn form. In the infancy of 
the Union, the policy of road-making by Congress had its reason; 
but that reason had ceased with the growth of the population, wealth 
and power of the States to which the policy was originally applied. 
Nay, independently of this, the introduction of steam as a motive 
power, and the application of that power to transportation by land 
and water, had revolutionized the whole system of so-called inter- 
nal improvements, and brought us face to face with new ideas and 



84 Settlement of Accounts. 

new methods of promoting the material welfare of the United States, 
whether with or without the co-operation of Congress. In fine, 
this series of enactments were the manifestation of the fact of the 
opening of men's eyes to the dawn of the new era of public im- 
provements, on which the country had already entered, and* in 
which it has continued to make such marvelous advancement. We 
formally put off the old things, with all their incumbrances and im- 
pediments, and started consciously and avowedly on a new career 
of national greatness. . But here, as in other matters, it required 
time for Congress fully to appreciate the change which had come 
over its own counsels in this respect, and to accept and generalize 
the change in all its logical consequences. Absence of a priori 
generalization of thought, beginning with particular cases, to come 
afterward to a comprehensive rule, is the habit of Americans, in- 
herited from the English, as we see constantly exhibited in the 
workings of legislation, of judicial decision, and of public opinion. 
It is more especially distinguishable in the proceedings of Congress, 
where, by reason of the necessary and healthful conflict of interests 
and convictions, it is often practicable to introduce a new princi- 
ple by a particular measure, or step by step in a series of particular 
measures, while it would be impracticable to do so by a general 
measure. When the principle is once plainly seen, however, in 
some concrete form of a tangible fact, Congress promptly makes the 
appropriate logical application to other facts of the same class. 

Alabama, then, was settled with according to the tenor of the 
act of 1855, which presupposed that three per centum on actual 
sales had been paid to her from time to time as the successive ac- 
counts were stated under the act of 181 9, and two per centum from 
time to time under the act of 1841. Both of these acts of 1819 and 
1841, became incorporated in effect into the act of 1855, as much 
as if they had been repeated in express words ; that is to say, the 
act of 1855 contemplated and required' the allowance and payment 
of the entire five per centum on sales, in virtue of the pre-existing 
laws which were a necessary part of this law ; and it then made the 
addition of lands reserved for the Indians. Such certainly, is the 
only possible exposition of this act. 

The principle being thus fixed and made apparent, the next step 
was to apply it to other States. Accordingly, in March, A. D., 
1857, Congress passed the following act, (U. S. Laws, vol n, p. 
200 :) 

AN ACT to settle certain accounts between the United States and the State of 
Mississippi and other States. 

Be it enacted by the Senate and House of Representatives of the United States 
in Congress assembled, That the Commissioner of the General Land Office be, 
and he is hereby, required to state an account between the United States and the 
State of Mississippi, for the purpose of ascertaining what sum or sums of money 
are due to said State, heretofore unsettled, on account of the public lands in 
saifl State, and upon the same principles and allowance as prescribed in the 



Settlement of Accounts. 85 

"Act to settle certain accounts between the United States and the State of Ala- 
bama," approved the second of March, 1855; and that he be required to in- 
clude in said account the several reservations under the various treaties with the 
Chickasaw, and Choctaw Indians within the limits of Mississippi, and allow and 
pay to the said State five per centum thereon, as in case of other sales, estimating 
the lands at the value of $1.25 per acre. 

Sec. 2. And be it further enacted, That the said Commissioner shall also 
state an account between the United States and each of the other States upon 
the same principles ; and shall allow and pay to each State such amount as shall 
thus be found due, estimating all lands and permanent reservations at $1.25 per 
acre. 

Reviewing this act, we perceive that the effect of the first section 
is to make for the State of Mississippi the same provision which, 
two years before, had been made for the State of Alabama, by the 
comprehensive words requiring the Commissioner of the General 
Land Office to state an account between the United States and the 
State of Mississippi, for the purpose of ascertaining what sum or 
sums of money are due to said State, heretofore unsettled, on ac- 
count of the public lands in said State, and upon the same princi- 
ples and allowance as prescribed in the "Act to settle certain ac- 
counts between the United States and the State of Alabama," and 
to allow and pay to the State the price per cent, reserved by the 
act for the admission of the State of Mississippi into the Union. 

The pertinent clause of that act, passed March 3, 1817, is as fol- 
lows, (U. S. Laws, vol. 3, p. 349 :) 

That five per centum of the net proceeds of the lands lying within said Terri- 
tory, and which shall be sold by Congress, from and after the first day of De- 
cember next, after deducting all expenses incident to the same, shall be reserved 
for making public roads and canals, of which three-fifths shall be applied to 
those objects within the said State, under the direction of the legislature-thereof, 
and two-fifths to the making of a road or roads leading to the said State, under 
the direction of Congress. 

Thereupon, in the case of Mississippi, as previously of Alabama, 
her land account was re-stated : she was credited with five per 
centum of the net proceeds of actual sales of the national domain 
within her limits, and charged with sums paid from time to time on 
account ; the value of reservations under treaties with the Chicka- 
saw, Choctaw, and Cherokee Indians was added ; and the balance 
of the whole five per centum thus found to be remaining unpaid 
was allowed and paid to the State. 

In this case, also, the act of 181 7 and that of 1841 were necessa- 
rily assumed as incorporated into the final act of 1857, they to- 
gether constituted in effect one act, for the purposes of that act, and 
defining the "principles" to be followed and the "allowance" to 
be made in conformity therewith. 

In each of these cases the Executive Government, in the due 
course of administration, construed and executed the law in so fat- 
as regards the States of Alabama and Mississippi; and the "princi- 



86 Settlement of Accounts. 

pies" of those acts, the rules of "allowance," passed out of the do- 
main of controversy into that of things adjudged. 

And, in the construction of these acts, as to Alabama and Missis- 
sippi, the phrase "allow and pay" was deemed equivalent to words 
of appropriation, as it has been in divers other acts of Congress. 

In the second enactment Congress did not stop at the same point 
as in the first ; for the doctrines of that act,, namely, abandonment 
of the policy of withholding from the new States, for road purposes, 
any portion of the five per cent, fund set apart on their admission 
into the Union, had now got to be distinctly understood. Of 
course, the injustice of making this abandonment on behalf of the 
two Southwestern States, and not making it on behalf of Northwest- 
ern States similarly situated, was too plain to be disputed. Logical 
truth and fair dealing alike demanded the application of the doc- 
trine to other States. 

Accordingly, we have the second section, which in effect com- 
mands that an account shall be stated between the United States 
and each of the other States upon the same principles, and that the 
amount thus found due shall be allowed and paid to each of such 
other States. 

Of this provision the State of Illinois now claims the benefit, 
showing that the act for her admission into the Union contains the 
same reserve as the acts for the admission of the States of Alabama 
and Mississippi, as follows, (U. S. Laws, vol. 3, p. 430:) 

That five per cent, of the net proceeds of the lands lying within such State, 
and which shall be sold by Congress from and after the first day of January, 
1 819, after deducting all expenses incident to the same, shall be reserved for 
the purposes following, viz : Two-fifths to be disbursed under the direction of 
Congress, in making roads leading to the State, the residue to be appropriated 
by the legislature of the State for the encouragement of learning, of which one- 
sixth part shall be exclusively bestowed on a college or university. 

Thus we see that the three cases of Alabama, Mississippi and Illi- 
nois are substantially identical as to three-fifths of the five per cent, 
which in each of the acts of admission commits those three-fifths to 
the administration of the respective States and absolutely identical 
in law as to the remaining two-fifths, in providing as to Alabama 
and Mississippi that these two-fifths shall be applied "to the making 
of a road or roads leading to the said State, under the direction of 
Congress," and, as to Illinois, providing that the two-fifths "be dis- 
bursed under the direction of Congress in making roads leading to 
the State." 

Now, what are the "principles" on which the accounts of Ala- 
bama and Mississippi were stated, allowed and paid?. 

First, it is to state an account of the entire "five per centum" of 
the acts of admission into the Union ; that is, five per centum on 
all the actual sales within the respective States. 



Settlement of Accounts. 87 

Secondly, it is to add to the account "five per centum" on all 

the treaty reservations of lands therein made by the United States. 

Thirdly, it is to allow and pay the whole five per centum, (that is, 

whatever balance of it may remain unpaid on previous accountings) 

to the respective States. 

Such are the "principles" according to which settlement was re- 
quired to be made, and was in fact made, with Alabama and Mis- 
sissippi; those principles being found partly in the acts of 1855 and 
1857 themselves, and partly in the act of 1841, which they, by 
necessary construction, comprehended, as well as the respective 
acts of admission into the Union. 

The language of each of the acts, as to the account, allowance 
and payment of the entire five-fifths to the respective States, is the 
same, and it is alike imperative in each case. It commands the 
same to 'be done. It has been done in behalf of Alabama and Mis- 
sissippi. It should now, by force of the same law, be done as to the 
State of Illinois. For it is the entire five per cent, fund as to each of 
these States, of which account is to be stated "on the same princi- 
ples" it is the entire five per centum which is to be stated "upon 
the same principles and 'allowance ;" it is the balance remaining due 
of the entire five per centum which is to be allowed and paid to 
each State. 

As to the three-fifths of this, there seems to have been no con- 
troversy. It has been determined that, although no "Chickasaw, 
Choctaw or Cherokee Indians," had reservations in the State of 
Illinois, yet that, in virtue of the prescribed "principles" of allow- 
ance to Alabama and Mississippi, the spirit of the law required al- 
lowance for any Indian reservations in Illinois. That was just and 
true construction so far. But this allowance admitted only one of 
the "principles" of the act, and disregarded another and a more im- 
portant one, namely, the statement of an allowance of the entire 
five per centum to Illinois, as well as to Alabama and Mississippi. 

And it seems not possible to doubt that this would have been 
done long since, but for the sanguinary civil war in which the very 
life of the nation has been at stake, and the dread shadow of which 
is but now passing off from the face of the Union. 

For the administrative obstacle, which has been interposed to the 
allowance and payment of the two-fifths to the State of Illinois, is 
thus interposed, in apparent disregard of the letter and spirit of the 
acts of Congress, and without support, as it seems to me, on any 
sound foundations. 

This obstacle consists in the suggestion of a set-off by the United 
States, on account of alleged, expenditures within the State of Illi- 
nois, in continuation of the old national road, for a sum of money 
exceeding the two-fifths in amount claimed by the State. 

To this pretension several sufficient answers occur : 



88 Settlement of Accounts. 

i. It would be a patent breach of faith to charge any such sums 
to the State of Illinois, under pretence of the clause of her act of 
admission for that clause plainly makes the reservation solely 
on account of roads leading to the State, not of roads within it. 
Such expenses, if chargeable to any State, would be chargeable to 
the State of Missouri, which State has, however, been relieved there- 
from by express act of Congress. (U. S. Laws, vol. n, p. 388.) 

2. That expenditure has been of no advantage to the State of Il- 
linois ; for the construction was commenced only, and was long 
ago abandoned, leaving it an object of deformity, rather than of 
utility, on the territory of the State. 

3. The United States cannot lawfully and justly charge against 
Illinois any part of the expenditures on the national road eastward 
of the State, because there, also, the Government has abandoned the 
road to the States within which it lies, has ceased to keep it in re- 
pair, has allowed it to be converted into a toll-road, and has thus 
deserted the trust on account of which the reservation was made, 
and has forfeited all equitable claim to the trust fund as against the 
State. 

But why dwell on these secondary considerations ? It is plain to 
see that Congress, by enacting the laws in question, did, in effect, 
as we have previously shown, solemnly recognize and proclaim its 
abandonment of all claim to these trust fuuds, and the surrender 
thereof to the respective States. 

That is manifest on the face of the acts themselves. It has been 
adjudged and resolved in behalf of Alabama and Mississippi. 

And the same language of enactment requires that the same 
thing should be done with respect to the State of Illinois. 

It will not serve to say, in reply, that no part of the expense of 
the national road had in fact been charged to the States of Alabama 
and Mississippi. The liability of these States to a part of that 
charge is just as much an element of the contract attending their 
admission into the Union as is the liability of the State of Illinois. 

It has already been shown that the act of 1857 assumed and ac- 
cepted the act of 1841, releasing the two per centum fund to Ala- 
bama, and required account, allowance and payment on these prem- 
ises. Likewise, that the act of 1857, in its first section, accepted 
and assumed the same act of 1841, and required account, allowance 
and payment on the same premises. And that the act, in its second 
section, required the application of the same principles to other 
States, including Illinois. 

No set-off was expressed against Alabama or Mississippi, nor 
could any be implied. No more was any set-off expressed or im- 
plied against Illinois. 

It is wholly immaterial what charges, if any, may have existed 
under any previous law, against Alabama or Mississippi. If any 
such existed, whether on account of road funds or anything else, 



Settlement of A c counts . 29 

they could not enter into this account. If such charges had 
relation to roads, they were cast off by the very terms of the law. 

So it is wholly immaterial what charges, if any, may have existed 
under any previous law against Illinois ; if any such existed, whether 
on account of road funds or anything else, they could not enter into 
this account. And if such charges had relation to roads, they were 
cast off by the very terms of the law, as well in favor of Illinois as 
in favor of Alabama and Mississippi. 

There is a rule of construction applicable to all legislative acts, 
which determines this question in the right of the State of Illinois. 
It is this : 

We assume, as universal doctrine of public law, that the legisla- 
tive power knows and considers all the facts involved in the enact- 
ment of a particular law, otherwise no legislative act would be pos- 
sessed of intrinsic vitality. If a legislative act could be nullified or 
overturned by suggestion that the legislators were ignorant of the 
premises on which the law, as it stands in the statute book, appears 
to be founded, all its acts would be subject to impeachment in the 
worst possible way ; that is to say, by going into proof of real or 
supposed facts behind the express words, plain tenor, and clear 
spirit of the enactment. The legal impossibility of attacking a law 
for any such reason as this has been conclusively and authoritatively 
determined in cases of the most exigent character, as, for in- 
stance, the allegation of fraud or other such fact anterior to the en- 
actment. That this cannot be is an axiom of statute construction. 

And it is another axiom of statute construction that the intention 
of the legislature is to be sought for in the statute itself, or in other 
statutes in pari materia, or statutes of antecedent or subsequent date, 
serving to indicate the entire and continuous thought of the legis- 
lator. 

Now, having these principles present in the mind, we are to re- 
member that Congress was perfectly well aware (if it be true) that 
expenditures on the national road had been made and chargeable to 
the State of Illinois, exceeding the two-fifths reserved by the act for 
her admission into the Union. 

In the full light of this knowledge Congress enacts, in explicit 
and positive terms, that the entire five-fifths shall be reckoned up 
and allowed and paid to the State. 

If, knowing that the charge existed, Congress had intended that 
the same should be set-off against the two-fifths, it should and would 
have said so. Nay, knowing that the alleged charge exceeds the 
sum total of the two-fifths, it would have been supremely absurd and 
simply ridiculous for it to enact that anything should be allowed 
and paid to other States. To the contrary of this, if Congress had 
contemplated any such set-off, which, if made, would bring those 
other States in debt, it must and would have provided for collecting 
the same from such States instead of providing as it did, that pay- 

12 



90 Settlement of Accounts. 

ment should be made to them. In short, the premises, on which 
set-off is proposed, make mere nonsense of the acts under review. 

We cannot suppose — we have no right to impute — any such pre- 
posterous contradiction of thought and purpose on the part of Con- 
gress. To do so would be to set at naught the justest and most firm- 
ly-established rules of statute construction. 

Not only is the claim of set-off not provided for by the act, but 
it is expressly negatived. To claim it is to proceed in the very 
teeth of the law. 

This adverse pretense of set-off may be disposed of by another 
and a distinct order of considerations. 

Indubitably, by the first of the acts of account, Congress, in ef- 
fect, repealed any and all prior acts which withheld the two per cent, 
road fund from the State of Alabama. That point has passed into 
final decision. 

Indubitably, also, by the first section of the second of these acts 
of account, Congress repealed any and all other acts which with- 
held the two per cent, road fund from the State of Mississippi. That 
point has passed into final decision. 

And so, by irresistible parity of reasoning, Congress, in the 
second section of the last-named act must be intended and deemed 
to have repealed any and all prior acts which withheld the two per 
cent, fund from other States in consimili casu, including the State 
of Illinois. 

In short, for sufficient, just, and equitable reasons of inducement 
of a radical mutation of public policy in this respect, Congress threw 
up the trust, treated it as annulled, and ordered the payment of the 
trust fund to the respective States. Such is the express provision of 
the law. 

In conclusion, therefore, and without holding it necessary to 
justify my opinion by repetition of the discussion of some incidental 
questions which have been fully and ably considered by those who 
preceded me on the argument, it suffices to say that, in my judg- 
ment, the State of Illinois is entitled in law and equity to demand 
and receive this money from the United States. 

C. CUSHING. 



EBPOBT 

OF THE 

COMMITTEE ON ROADS AND CANALS, 

IN FAVOR OF COMPLETING THE CUMBERLAND ROAD, 
AND SHOWING THE NATURE OF THE CONTRACT 
BETWEEN THE UNITED STATES AND THE STATES. 

February io, 1846. 

The Committee on Roads and Canals, to whom were referred sundry 
memorials praying that appropriations may be made for the com- 
pletion of the Cujnberland road, also a bill and resolutions relative 
to the same subject, suggesting various methods of accomplishing 
the desired object, report : 

The building of the Cumberland road has been considered an 
object of national importance for more than forty years. Its policy 
has been set forth, its wisdom has been vindicated, by nearly every 
eminent statesman that has flourished in our country since its ear- 
liest adoption. Entered upon under the auspices of Mr. Jefferson, 
it has been sustained with a spirit, and, in the general, with a 
liberality which few measures have been favored with during so 
long a period of time. Like all other favorite measures of large gov- 
ernments, it has suffered from the ill considered schemes of mis- 
judging friends, and from the prodigalities of irresponsible subor- 
dinates. Economy and cheap methods of construction have failed 
to be ever-present to guard its popularity, and to achieve the 
greatest amount of good. Appropriations, also, have not generally 
been either consecutive, seasonable, or adequate. Hence pro- 
tracted delays, productive of loss and decay of materials, and 
causing work to be performed at unsuitable seasons, and at advanced 
rates of cost, have ensued to the ruin of many worthy contractors, 
and to the manifest injury of the government and of the people of 
that section of our country through which the road runs. The 
non-execution of the work, for many years later than a period 



92 Settlement of Accounts. 

deemed reasonable by the most prudent to count upon for its com- 
pletion, has worked the ruin of large numbers of settlers upon, and 
purchasers of, the public domain — men who many years ago open- 
ed large farms and erected costly buildings along the route of the 
road, from a belief that the government would not fail to com- 
plete in good faith an improvement entered upon for the very pur- 
pose of promoting the settlements they were making. 

Under these circumstances, Congress is called upon to decide 
whether it will go forward and complete, with a reasonable promp- 
titude, the great work it has begun, or consign it to dilapidation 
and decay. If the decision is favorable to a consummation of the 
policy adopted in 1802, after a deliberate survey of the field, and 
for a valuable pecuniary consideration, (as the committee will 
hereinafter show,) it will become the duty of the House to con- 
sider whether it were best to construst the road through the agency 
of its own officers, or of the States through which the road passes. 
If it is esteemed best to authorize the States to complete the road, 
it becomes a matter of inquiry whether the appropriation to defray 
the cost of construction shall be of money or of land. 

Preliminary to an examination of these two important questions, 
it becomes us to inquire whether other obligations rest upon the 
government to complete the Cumberland road than those which are 
created by the announcement to the people that a certain line of 
policy will be pursued to induce them to settle certain portions of 
the country, and thus lengthen the cords and strengthen the stakes 
of our political fabric. 

And here, that no unjust opinions may obtain in the minds of 
any, the committee think it proper to say that they fully recognise 
the doctrine "that the principles of justice, the harmony of the 
Union, and the spirit of the federal compact, (which contemplates 
an equal diffusion of benefits as well as of burdens among the mem- 
bers of the confederacy,) require that expenditures made out of 
the federal treasury, for objects of internal improvement, ought to 
be extended to all the States, and apportioned among them in fair 
and just proportions, according to some uniform, equitable, and 
permanent rule of apportionment." 

The committee seek not to confer upon the four great western 
States of Ohio, Indiana, Illinois, and Missouri, favors to which they 
are not entitled, and to the neglect of other States equally merito- 
rious, equally deserving of federal munificence. It seeks only to 
ascertain and develop the original compact between the government 
and those States, and to urge its performance in good faith and 
without an unbecoming delay. Justice, to be complete, must be 
speedy. What was that compact? We extract, in answer, from the 
Senate report of 1840: 

"Is the general government bound in good faith, under the com- 
pacts with the States of Ohio, Indiana, Illinois, and Missouri, to 



Settlem ent of A ccou nts . 9 3 

complete this road ? The compacts, and some other matters con- 
nected with this subject, will be laid down by the committee as the 
text from which they will proceed to answer the latter interrogatory. 
The 'territory northwest of the Ohio' comprised the country in- 
cluded in the States of Ohio, Indiana, Illinois, and Michigan, and 
the Territory of Wisconsin. The ordinance of 1778, among other 
things, provided that there should be not less than three States 
formed out of this territory. In the year 1802, the eastern division 
petitioned Congress to provide for its admission into the Union 
under the ordinance. The application was favorably received by 
Congress, and the following proposition was submitted to the con- 
vention of Ohio by the act of Congress of 30th April, 1802: 

" 'That the following propositions be, and the same are hereby, 
offered to the convention of the eastern States of the said territory, 
when formed, for their free acceptance or rejection, which, if ac- 
cepted by the convention, shall be obligatory upon the United 
States : 

" 'First. That the section numbered sixteen in every township, 
and, where such section has been sold, granted or disposed of, other 
lands equivalent thereto, and most contiguous to the same, shall be 
granted to the inhabitants of such township for the use of schools. 

" 'Second. That the six miles reservation, including the salt 
springs, commonly called the Scioto Salt Springs, near the Mus- 
kingum river, and in the military tract, with the sections of land 
which include the same, shall be granted to the said State, for the 
use of the people thereof ; the same to be used under such terms, 
and conditions, and regulations, as the legislature of the State shall 
direct, provided the said legislature shall never sell or lease the 
same for a longer period than ten years. 

" 'Third. That one-twentieth of the net proceeds of the lands 
lying within the said State, sold by Congress from and after the 
thirtieth day of June next, after deducting all expenses incident to 
the same, shall be applied to the laying out and making public 
roads leading from the navigable waters emptying into the Atlantic, 
to the Ohio, to the said State, and through the same; said roads to 
be laid out under the authority of Congress, with the consent of the 
several States through which the road shall pass ; provided, always, 
that the three foregoing propositions herein offered are on the con- 
dition that the convention of the said State shall provide, by an 
ordinace irrevocable without the consent of the United States, that 
every and each tract of land sold by Congress from and after the 
thirtieth day of June next shall be and remain exempt from any 
tax laid by order .or under authority of the State, whether for State, 
county, or township, or any other purpose whatever, for the term of 
five years from and after the day of sale.' 

"By the act of 3d March, 1803, the above proposition was so 
modified as to commit to the State three-fifths, of the reservation 



94 Settlement of Accounts. 

for roads, to be expended within the State, reserving two-fifths, or 
two per cent, on the sales, to be appropriated, agreeably to the 
terms of the act, to roads leading to and through the States. Indi- 
ana came into the Union under the act of 19th April, 181 6, which 
is similar in its import to that in relation to Ohio. One clause of 
the act, relative to Indiana, being all that bears directly on the 
question the committee is considering, is as follows : 'That five per 
cent, of the net proceeds of the lands lying within the said terri- 
tory, and which shall be sold by Congress from and after the first 
day of December next, after deducting all expenses incident to the 
same, shall be reserved for making public roads and canals, of 
which three-fifths shall be applied to those objects within the said 
State, under the direction of the legislature thereof; and two-fifths 
to the making of a road or roads leading to the said State, under 
the direction of Congress.' 

"The act for the admission of Illinois, of the 18th April, 1818, 
and the act for the admission of Missouri of 6th March, 1820, 
contain similar provisions to those above cited, in relation to Ohio 
and Indiana." 

After making this statement of the case, the Senate committee 
proceeded to ask: "Did the government contract to make a road 
leading to and through those States, upon the considerations ex- 
pressed in the compacts, or did she merely bind herself to expend 
the two per cent, of the net proceeds of the public lands towards' 
that object ? If the first, then she was bound to construct the road, 
whether the two per cent, reserved was sufficient for that purpose 
or not. If the latter, then she became a trustee to the States to the 
full amount of the funds committed to her charge, and was respon- 
sible for a judicous expenditure of it in the construction of the 
work. The committee will briefly examine these positions. That 
the government contracted to complete this road to and through 
the States named in the compacts, and that such was the original 
understanding of the parties, may be inferred from the following 
considerations : It was the original policy of the government, as 
the proprietor of the most of the lands in those States, under the 
circumstances, and with the motives to which the committee has 
directed the attention of the Senate in a previous part of this re- 
port, to have this road continued from the waters of the Atlantic, 
through these States. Such was her interest, and such the enlight- 
ened counsels that governed her action at that time. She saw its 
nationality — she saw its operation in facilitating the sale and settle- 
ment of her wild lands ; and she was not unmindful of what was 
due to those who periled their lives, and braved the hardships and 
suffering incident to the settlement of a new country. 

"It will be observed, and the committee calls attention of the 
Senate to the fact, that this was not a grant to a State of two per 
cent, of the sale of the public lands, but a reservation by the gov- 



Settlement of Accounts. 95 

ernment of that per cent., for the purpose of making a road run- 
ning to and through the State, granting directly to the State the 
three per cent, to make roads within the States, which latter sum 
was placed in the custody of the States, subject to their direction, 
while the former or two per cent, was reserved by the government 
and held by her subject to her own action, independent of the States, 
except as to the road to be constructed through the States requiring 
their assent so far as the right of way was involved. In the one 
case, the general government retained the fund, and the power to 
appropriate it to just such a work as she thought proper ; in the 
other, she parted with the fund to the States, and retained no con- 
trol over it, or the object of its construction. Is it to be supposed 
for a moment that the States ever would have consented for the 
general government to have retained and expended this fund upon 
a work which she might lay out and project upon a scale so exten- 
sive, or so expensive, as to merge the whole funds, and leave a 
work that would exhaust in its completion a greater sum than the 
States would have felt justified in expending on any single work ? 
For let it be remembered that the States had no say in the direc- 
tion, scale, or execution of the work. It would have been folly in the 
States to have consented to such compacts, with such an understand- 
ing; but it seems to the committee that such is not the true con- 
struction of the compacts. This view is strengthened by the facts, 
that the lands subject to the operation of the compacts in the three 
States of Ohio, Indiana, and Illinois, alone, were estimated at one 
hundred and twenty millions of acres; the tax on this quantity of 
land, which was relinquished by the States, for the five years would 
have amounted to at least five millions of dollars. The estimate of 
Mr. Gallatin for the road from Cumberland, the first 70 miles, to- 
wards Wheeling, was $6,000 per mile. The whole distance from 
Cumberland to the Mississippi, being the proposed length of the 
road, is 650 miles, which, at the cost of the first 70 miles, as esti- 
mated by Mr. Gallatin, would make for the whole work $3,900,000 ; 
such was the estimate at that time. The committee is apprised that 
the estimate was greatly below the cost of the work, but still it is 
not prepared to admit that any argument can be drawn from that 
fact against the position assumed, that the government contracted 
to make the work upon the consideration stated in the compacts ; 
and if the consideration she received for the promise was inade- 
quate, or if she laid down her work on a scale too liberal or too 
expensive for the funds she had reserved for the purpose of its con- 
struction, surely she cannot stop short, after she has received the 
consideration from the States, and after they have conformed their 
roads and improvements to her great national road, and say she 
abandons the work, without an open violation of her contract with, 
and plighted faith to, the States. The committee, therefore, main- 
tain that the government was bound by the compacts to finish the 



9 6 Settlement of Accounts. 

work, whether two per cent, of the net proceeds of the sales of the 
public lands was sufficient to complete it on her scale or not. 

"The next position for examination is that which is so frequent- 
ly relied upon on this question, against a further prosecution of the 
work, that the General Government was only a trustee, and bound 
to expend the two per cent, of the proceeds of the sales of the pub- 
lic lands within the States, and no more ; and having expended 
that sum, she is under no obligations to complete her work. The 
committee has already attempted to show that this is not the true 
construction of the compacts ; but if it were admitted, it is not be- 
lieved that the principle would exempt the General Government 
from the completion of the Cumberland road to the Mississippi. If 
she was a trustee at ail it was to the States for the entire fund com- 
mitted to her charge, as well as an economical and judicious expen- 
diture of it in the construction of the work. What was it her duty 
to do? It is answered, dispose of the entire fund for the best price 
she could get under the land laws at the time. She surely could 
not escape from her liability for the whole fund thus to be disposed 
of, by the passing of laws making grants, reducing prices, paying 
for military services in land, giving pre-emptions, and otherwise re- 
ducing the quantity and price of the land to be applied to the 
work. Nor can she escape by saying that she has laid out a work 
upon so large and expensive a scale that the fund will not complete 
it ; nor does it lie in the mouth of such a trustee to say, that the 
appropriations from year to year were made in such small sums, and 
at such periods in the year, that they were exhausted in keeping the 
road in repair. As the states could not control the matter, good 
faith required of the General Government to have adapted the whole 
fund to the completion of the work, or rather the proportions of 
the work to the amount of the fund. Nor is the committee pre- 
pared to admit that the entire fund, if judiciously appropriated and 
economically expended upon a good and substantial work of the 
kind, would not have been amply sufficient to have completed it. 
It is believed it would." 

Upon this question of the compact between the government and 
the four States, and strongly illustrative of the justice of the views 
of the Senate committee, the position of Missouri may be aptly 
cited. Has that State desired the expenditure of $3,000,000 (near- 
ly) on the road in Maryland, Virginia, and Pennsylvania, or has it 
been materially benefitted by it? Has it been so largely benefitted 
by the building of any portion of this road, that Congress can with 
justice say that, in fulfillment of the national compact, the money 
has been expended upon a road leading to and passing through Mis- 
souri ? Has Missouri even desired a road of the kind the United 
States has been building across the mountains for the benefit of the 
old States? Exactly otherwise. Seventeen years ago the legislature 



Settlement of Accounts. 97 

of Missouri memoralized Congress in the following significant 
terms : 

To the Senate and House of Representatives of the United States in 
Congress assembled : 
"The General Assembly of the State of Missouri, considering that 
the people of this State are greatly interested in the speedy location 
and construction of the Cumberland road to the city of Jefferson, 
assume the liberty to present for the consideration of Congress the 
propriety of providing, by law, for the immediate location of that 
road throughout its whole extent, and to earnestly recommend the 
policy of speedily opening, graduating, and so improving the same 
by bridges and causeways, as to facilitate the passage over the most 
difficult streams and swamps. This General Assembly are well 
aware that the amount already expended in the construction of this 
road, from the point- of its commencement at Cumberland, has 
been great, and perhaps considerably exceeding the amount of the 
two per centum fund heretofore arising from the proceeds of the 
sales of public lands in the western States, and appropriated to 
that object by the general government. Yet it must be obvious to 
the Congress of the United States, that, considering the great dis- 
tance all parts of this improvement are from the limits of this State, 
(to the capital of which it is destined ultimately to reach,) the con- 
veniences now arising from it are too remote to be sensibly felt, or 
even to operate, except in a slightly collateral way, on its citizens. 
And considering the time already elapsed since the commencement 
of that great object of internal improvement, and the progress 
heretofore made towards its accomplishment, it appears evident to 
your memorialists that no person of the present generation will ex- 
perience the benefits resulting from it, nor witness its completion 
in accordance with the original plan and patriotic intention of the 
general government. Such being the real condition of the citizens 
of this State in relation to the advantages resulting from the expen- 
diture already made from the general fund (of which they have 
furnished a liberal share) towards the construction of this road ; 
and as this General Assembly entertain the opinion, in conformity 
with the reasons hereinafter expressed, that even a specific appro- 
priation from the national treasury, to immediately effect the in- 
cipient measures contemplated by the memorial, would be both 
beneficial to the citizens of this State, and tend to an augmentation of 
the national revenue and the national wealth of the Union ; they cher- 
ish the hope that their reasonable request in this behalf may receive 
the ready assent of the general government. In accordance with 
what has been observed, your memorialists would further remark, 
that if the plan hereinbefore suggested be adopted, a most excellent 
road, at an expense comparatively small, may be speedily construct- 
ed ; and the government can afterwards proceed to cause it to be 



9 8 Settle?nent of A ccou nts . 

paved in the way now pursued. With much confidence can this 
view be relied on in speaking of the course of this road through 
the States of Illinois and Missouri. The country is generally level, 
and well adapted to the construction of good roads (at least for ordi- 
nary purposes) without i?icurring the expense of paving. In both 
of the States mentioned, the Cumberland road will pass through 
much of the public lands of the United States. The location and 
clearing out of this road, in the manner proposed, would immedi- 
ately enhance the value of much of the public domain in a very 
considerable degree ; so that in a financial point of view, the gov- 
ernment would probably lose nothing by the disbursement of a 
sum sufficient to effect the object desired. The General Assembly, 
relying on the faith of the general government, cannot doubt but 
that some provisions will be made for the accomplishing an object 
of so much importance to this State, to the people of the west, and 
to the whole Union; and confidently expect that the subject herein 
presented will receive that consideration which its great interest 
demands. 

"JOHN THORNTON, 

"Speaker of the House of Representatives. 
"DANIEL DUNKLIN, 

"President of the Senate. 
"Approved, January 2 2d, 1829. 

"JOHN MILLER." 

With great truth the legislature asserts that "the conveniences 
now arising from it are too remote to be sensibly felt, or even to 
operate, except in a slightly collateral way, on its citizens." St. 
Louis, by water, is 1,100 miles from Wheeling, and was collaterally 
benefited by the money expenditures upon the road east of Wheel- 
ing, and in the interior of Ohio and Indiana, in the same way 
Louisville, Natchez, and New Orleans were benefited. The same 
remark holds good, and in full force, with all important towns in 
Western Illinois That these expenditures were made with an eye 
to benefit the citizens of Missouri, and to liquidate the claim of 
that State to an honest expenditure of the two per cent, fund, as 
stipulated by the compact, will hardly be pretended by any one. 

The four States, by binding themselves not to tax lands during a 
period of five years from the date of their sale to individuals, gave 
a most valuable consideration for the expenditures Congress is 
pledged to make. The principal source of revenue belonging to 
new States is the land tax; and to be deprived of the ability to levy 
it to any considerable extent, is to seriously augment the embar- 
rassments of the treasury and the burdens of the people. And 
besides this, the United States is, and during the last forty-five 
years has been, the principal land owner in three of the four 



Settle?n ent of A ccmmts . g g 

States ; and if its land had been taxed at the rate that other lands 
have been taxed, money enough would have been raised to have 
built a road from Cumberland to Nebraska. But, unlike other 
property owners, while its property is daily being benefited by the 
labor, money, and improvements of the States and of the citizens, 
it is not compelled to pay its pro rata share of taxation. Does not 
this fact constitute an important claim upon the kindest and most 
liberal consideration of Congress ? 

To recur to the question of who shall build the road, the United 
States or the several States? the committee are clearly of the 
opinion that sound policy dictates the delegation of the trust to 
the States interested, the United States simply furnishing the 
means to pay for the work. The work will be likely to be done 
cheaper and more speedily, and with direct reference to the wishes 
of the people interested. 

And lastly, as to the expediency of voting money or land ap- 
propriations to consummate the object of building roads "to and 
through" these States. After much consideration of this subject, 
and a free consultation with the representatives of the people 
directly interested in the result, the committee are of opinion that 
it is best to make a dia^ct appropriation of land to a sufficient 
amount ^o insure the completion of the road to the city of Jeffer- 
son, in the State of Missouri. By so doing, the subject will be 
finally disposed of, and to the satisfaction of all the parties con- 
cerned. The long expected good would be realized ; the number 
of land holders and of tax payers would immediately be largely 
increased, to the mutual advantage of the State and of the general 
governments. 

Is it not an important desideratum, the final settlement of the 
Cumberland road question ? An appropriation of less than four 
millions of the several hundred millions of acres of public lands 
will satisfy the expectations of, and fulfil the conditions of the 
compacts with, the four millions of people inhabiting the four 
great western States, and thus give this subject a final quietus. 
That they will be silent, with such solemn guarantees in their power 
to plead, until the conditions of the compacts are fulfilled or com- 
promised, may not reasonably be expected : and of the various 
plans of compromise, the one proposed appears to the committee 
fair, and as most likely to be satisfactory to both parties. 

The road, where finished, has cost, upon an average, about the 
sum of $20,000 per mile. The committee propose to appropriate, 
payable in land at 31.25 per acre, to be disbursed at the conve- 
nience of the States interested, within the next eight years, at the 
rate of $8,000 per mile in the States of Ohio, Indiana, and Illinois 
east of Vandalia, and in western Illinois and in Missouri, at the 
rates estimated by the engineer department. This will give, to be 
expended on the 53^ miles of road in Ohio, the sum of $430,000; 



ioo Settlement of Accounts. 

to the 144 miles in Indiana, $1,152,000; to the 90 miles in Illi- 
nois, east of Vandalia, upon which labor has heretofore been ex- 
pended, $720,000; to the 67 41-100 miles of road in Illinois, west 
of Vandalia, upon which nothing has been done, $1,016,700.02; 
and to the 147 miles in Missouri, from the Mississippi river to the 
city of Jefferson, upon which no money has yet been expended, 
$•1,664,790.45. Payable in land, these sums will require the fol- 
lowing amounts of land to meet the appropriation, viz : for Ohio, 
344,000 acres ; for Indiana, 921,600 acres ; for Illinois, 1,389,360 
acres; and for Missouri, 1,331,832 acres — in all 3,986,792 acres of 
lands of the United States. 

And in accordance herewith, a bill is reported, and its passage 
recommended to the House. 



ACKNOWLEDGMENT. 



I must not permit this occasion to pass without an acknowledg- 
ment to the members of Congress from Illinois, who at all times, 
and on all occasions have manifested a deep interest in the claim 
of their State, and have never hesitated to render every proper 
assistance. 

The members from Ohio and Indiana have also shown an equal 
interest in behalf of their respective States, regarding the joint 
claims of the three States as legal and just. 

ISAAC N. MORRIS. 



Note. — The reader will find that a number of errors exist in the 
publication of this pamphlet, which occurred from a hasty reading 
of the proof sheets, in consequence of a great press of business in 
the office of the publishers; but as they do not materially affect 
the subject matter treated of, it is considered unnecessary to notice 
them in detail. 



H 88 78 









♦VrfZ^C. 



